The Hon’ble Mr. Justice Ravi v. Hosmani

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29 DAY OF SEPTEMBER, 2021 PRESENT THE HON’BLE MRS.JUSTICE S.SUJATHA AND THE HON’BLE MR. JUSTICE RAVI V. HOSMANI I.T.A.No.322/2018 c/w I.T.A.No.323/2018, I.T.A.No.324/2018, I.T.A.No.354/2018, I.T.A.No.355/2018, I.T.A.No.380/2018, I.T.A.No.381/2018, I.T.A.No.382/2018, I.T.A.No.383/2018, I.T.A.No.384/2018, I.T.A.No.385/2018, I.T.A.No.197/2021, I.T.A.No.198/2021 & I.T.A.No.199/2021 IN I.T.A.No.322/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX (CENTRAL), QUEENS ROAD, BANGALORE. TAX (CENTRAL), QUEENS ROAD, BANGALORE. 2 . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), BANGALORE. INCOME TAX, CENTRAL CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s DELHI INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025, PAN: …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.10.2017 PASSED IN ITA NO.635/BANG/2017, FOR THE ASSESSMENT YEAR 2008-2009, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 13.10.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'C' BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.635/BANG/2017 FOR ASSESSMENT YEAR 2008-2009, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.323/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX (CENTRAL), QUEENS ROAD, BANGALORE. TAX (CENTRAL), QUEENS ROAD, BANGALORE. 2 . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), BANGALORE. INCOME TAX, CENTRAL CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s DELHI INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025, PAN: …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.10.2017 PASSED IN ITA NO.595/BANG/2017, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 13.10.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'C' BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.595/BANG/2017 FOR ASSESSMENT YEAR 2009-2010, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.324/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX (CENTRAL), QUEENS ROAD, BANGALORE. TAX (CENTRAL), QUEENS ROAD, BANGALORE. 2 . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), BANGALORE. INCOME TAX, CENTRAL CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s DELHI INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025, PAN: …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.10.2017 PASSED IN ITA NO.621/BANG/2017, FOR THE ASSESSMENT YEAR 2010-2011, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 13.10.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'C' BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.621/BANG/2017 FOR ASSESSMENT YEAR 2010-2011, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.354/2018: BETWEEN : 1 . THE PR. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. 2 . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. ...APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND : IN I.T.A.No.354/2018: BETWEEN : 1 . THE PR. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. 2 . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. ...APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025, PAN: …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.10.2017 PASSED IN ITA NO.619/BANG/2017, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING TO 1) FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. 2) ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BENGALURU IN ITA NO.619/BANG/2017 DATED 13.10.2017 VIDE ANNEXURE-C AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), BENGALURU. IN I.T.A.No.355/2018: BETWEEN : 1 . THE PR. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. 2 . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. ...APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025, PAN: …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.10.2017 PASSED IN ITA NO.632/BANG/2017, FOR THE ASSESSMENT YEAR 2008-2009, PRAYING TO 1) FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. 2) ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BENGALURU IN ITA NO.632/BANG/2017 DATED 13.10.2017 VIDE ANNEXURE-C AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), BENGALURU. IN I.T.A.No.380/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.10.2017 PASSED IN ITA NO.600/BANG/2017, FOR THE ASSESSMENT YEAR 2012-2013, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 13.10.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'C' BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.600/BANG/2017 FOR ASSESSMENT YEAR 2012-2013, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.381/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BANGALORE. INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) IN I.T.A.No.381/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BANGALORE. INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.10.2017 PASSED IN ITA NO.634/BANG/2017, FOR THE ASSESSMENT YEAR 2008-2009, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 13.10.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'A' BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.634/BANG/2017 FOR ASSESSMENT YEAR 2008-2009, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.382/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 10.11.2017 PASSED IN ITA NO.597/BANG/2017, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 10.11.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'A’ BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.597/BANG/2017 FOR ASSESSMENT YEAR 2009-2010, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.383/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 10.11.2017 PASSED IN ITA NO.598/BANG/2017, FOR THE ASSESSMENT YEAR 2010-2011, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 10.11.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'A’ BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.598/BANG/2017 FOR ASSESSMENT YEAR 2010-2011, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.384/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BANGALORE. INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 10.11.2017 PASSED IN ITA NO.599/BANG/2017, FOR THE ASSESSMENT YEAR 2011-2012, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS IN I.T.A.No.384/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), BANGALORE. INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 10.11.2017 PASSED IN ITA NO.599/BANG/2017, FOR THE ASSESSMENT YEAR 2011-2012, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 10.11.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'C’ BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.599/BANG/2017 FOR ASSESSMENT YEAR 2011-2012, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.385/2018: BETWEEN : 1 . PR. COMMISSIONER OF INCOME TAX-CENTRAL, C.R.BUILDING, QUEEN’S ROAD, BANGALORE. BANGALORE. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(2), INCOME TAX, CIRCLE-2(2), BANGALORE. ...APPELLANTS (BY SRI SANMATHI E.I., ADV.) AND : M/s GMR HYDERABAD INTERNATIONAL AIRPORT PVT. LTD., SKIP HOUSE, 25/1, MUSEUM ROAD, BANGALORE-560 025 …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 10.11.2017 PASSED IN ITA NO.601/BANG/2017, FOR THE ASSESSMENT YEAR 2013-2014, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT. SET ASIDE THE APPELLATE ORDER DATED 10.11.2017 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, 'C’ BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.601/BANG/2017 FOR ASSESSMENT YEAR 2013-2014, AS SOUGHT FOR IN THIS APPEAL. IN I.T.A.No.197/2021: BETWEEN : 1 . THE PR. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. ...APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND : M/s GMR INFRASTRUCTURE LTD., NO.25/1, SKIP HOUSE, MUSEUM ROAD, BANGALORE-560 025, PAN:AABCG 8889P …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 28.10.2020 PASSED IN C.O.NO.02/BANG/2018 IN ITA NO.1428/BANG/2017, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING TO 1) FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. 2) ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BENGALURU IN C.O.NO.02/BANG/2018 IN ITA NO.1428/BANG/2017 DATED 28.10.2020 FOR ASSESSMENT YEAR 2009-2010 VIDE ANNEXURE-C AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), BENGALURU. IN I.T.A.No.198/2021: BETWEEN : 1 . THE PR. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. ...APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND : M/s GMR INFRASTRUCTURE LTD., NO.25/1, SKIP HOUSE, MUSEUM ROAD, BANGALORE-560 025, PAN:AABCG 8889P …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) IN I.T.A.No.198/2021: BETWEEN : 1 . THE PR. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. ...APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND : M/s GMR INFRASTRUCTURE LTD., NO.25/1, SKIP HOUSE, MUSEUM ROAD, BANGALORE-560 025, PAN:AABCG 8889P …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 28.10.2020 PASSED IN ITA NO.1428/BANG/2017, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING TO 1) FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. 2) ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BENGALURU IN ITA NO.1428/BANG/2017 DATED 28.10.2020 FOR ASSESSMENT YEAR 2009-2010 VIDE ANNEXURE-C AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), BENGALURU. IN I.T.A.No.199/2021: BETWEEN : 1 . THE PR. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, TAX, CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. BANGALORE-560001. 2 . THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560001. ...APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND : M/s GMR INFRASTRUCTURE LTD., NO.25/1, SKIP HOUSE, MUSEUM ROAD, BANGALORE-560 025, PAN:AABCG 8889P …RESPONDENT (BY SRI BALARAM R. RAO, ADV.) THIS ITA IS FILED UNDER SECTION 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 28.10.2020 PASSED IN ITA NO.1581/BANG/2017, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING TO 1) FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. 2) ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, BENGALURU IN ITA NO.1581/BANG/2017 DATED 28.10.2020 FOR ASSESSMENT YEAR 2009-2010 VIDE ANNEXURE-C AND CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER CONFIRM THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), BENGALURU. THESE APPEALS COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING: J U D G M E N T Since common and akin issues are involved in these appeals, they are heard together and disposed of by this common judgment. 2. These appeals are filed by the Revenue under Section 260A of the Income Tax Act, 1961 [‘Act’ for short] challenging the orders of the Income Tax Appellate Tribunal ‘C’ Bench, Bengaluru, (‘Tribunal’ for short) as shown in the cause title. 3. The appeals were admitted to consider the following substantial question of law: In ITA Nos.322/2018 to 324/2018: “Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in quashing the assessment order passed under Section 143(3) r/w Section 153A of the Act by following the judgment of this Hon’ble High Court in the case of M/s Lancy Constructions? In ITA Nos.354/2018 and 355/2018: “Whether on the facts and in thecircumstances of thecase and in law, the Tribunal was correct in law in holdingthat incriminating material is necessary conditionfor proceedings under Section 153A of the Act by following the judgment of this Court in the case of CIT V/s. Lancy Constructions?” In ITA Nos.380/2018, 382/2018 to 385/2018: “1. Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in law in allowing the depreciation on capitalization of expenditure incurred during the assessment year 2007-08 and 2008-09? 2. Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in law in restoring the file to assessing authority as for disallowance made by assessing authority in respect of Section 14A read with Rule 8D of the Act? following the judgment of this Court in the case of CIT V/s. Lancy Constructions?” In ITA Nos.380/2018, 382/2018 to 385/2018: “1. Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in law in allowing the depreciation on capitalization of expenditure incurred during the assessment year 2007-08 and 2008-09? 2. Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in law in restoring the file to assessing authority as for disallowance made by assessing authority in respect of Section 14A read with Rule 8D of the Act? 3. Whether on the facts and in the circumstances of the case and in law, the Tribunal is right in law in setting aside disallowance made under Section 40[a][ia] for non deduction of TDS on payments made to Director’s towards sitting fees by holding that the amendment will apply for A.Y.2014-15 onwards?” In ITA No.381/2018: “1. Whether on the facts and in the circumstances of the case and in law the Tribunal was correct in law in holding that incriminating material is necessary condition for proceedings under Section 153A of the Act by following the judgment of this Hon’ble Court in the case of CIT V/s. Lancy Constructions? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in quashing the assessment order by relying on the judgment of this Hon’ble High Court in the case of CIT V/s. Lancy Constructions [383 I TR 168]?” In ITA Nos.197/2021 to 199/2021: “Whether on the facts and circumstances of the case the Tribunal’s order can be said as perverse in nature in remanding the matter to CIT (A) to examine whether assessment order is based on any incriminating material seized during course of search conducted in the case of the assessee on 11.10.2012 and in the light of decision’s relied upon by it even when as per the parameters of Section 153A or 153C of the Act, assessing authority is empowered to pass assessment order in the absence of any incriminating material?” 4. The appellants are companies claiming to be in the business of infrastructure provider-operating and developing airport and related infrastructure at International Airport [hereinafter referred to as ‘assessee’]. Assessment orders were passed under Section 143(3) read with 153A of the Act, in consequence to a search and seizure operation conducted at the premises of the assessee. The Assessing Officer made certain additions and demanded tax thereon. The said assessment orders were challenged by the assessee before the Commissioner of Income Tax (Appeals), the said appeals came to be facilities, partly allowed. Hence, the Revenue as well as the assessee both preferred appeals before the Tribunal. The Tribunal allowed the appeals preferred by the assessee and quashed the assessment orders passed under Section 143 (3) read with 153A of the Act dismissing the appeals filed by the Revenue. Being aggrieved, the Revenue has preferred these appeals. 5. Learned counsel for the Revenue argued that the conditions for issuance of notice under Section 153A of the Act being well settled, merely on the ground that no incriminating material was seized by the Department, the proceedings initiated under Section 153A of the Act cannot be held to be unjustifiable; the finding of the Tribunal, runs contrary to the provisions of the Act and the judicial pronouncements. Much emphasis was placed on the Co-ordinate Bench decision of this Court in the case of Canara Housing Development Company. .v. Deputy Commissioner of Income Tax Central Circle-I [2014 (49) Taxxman.com 98]inter alia citing otherjudgments which would be discussed infra. 6. Learned counsel for the assessee argued that the Tribunal has rightly allowed the appeals filed by the assessee. The judgment of this Court in the case of Commissioner of Income Tax .v. M/s Lancy Constructions [2016 (237) Taxman 728], is squarely Income Tax Central Circle-I [2014 (49) Taxxman.com 98]inter alia citing otherjudgments which would be discussed infra. 6. Learned counsel for the assessee argued that the Tribunal has rightly allowed the appeals filed by the assessee. The judgment of this Court in the case of Commissioner of Income Tax .v. M/s Lancy Constructions [2016 (237) Taxman 728], is squarely applicable to the present case. The Tribunal having considered the said judgment has concluded that in the absence of any incriminating material, proceedings under Section 153A of the Act cannot be initiated and concluded and assessment cannot be reopened. 7. Distinguishing the judgment of Canara Housing Development Companysupra, learned counsel submitted that the judgments of various Hon’ble High Courts on this aspect would indicate that the assessing officer while making assessment under Section 153A of the Act could make addition only on the basis of some incriminating material unearthed during the course of search or requisition of documents. In the absence of such incriminating documents found during the search, any addition made by the assessing officer is not sustainable. In this regard, host of judgments have been cited in support of his contentions. 8. We have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record. 9. Section 153A of the Act reads thus: “Assessment in case of search or requisition. 153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003 9 but on or before the 31st day of March, 2021, the Assessing Officer shall— (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years and for the relevant assessment year or years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and for the relevant assessment year or years : Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years and for the relevant assessment year or years : Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years and for the relevant assessment year or years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate: Provided also that ……….. Provided also that ………” 10. In Canara Housing Development Company, supra, the coordinate Bench of this Court while considering proceedings under Section 263 of the Act vis-à-vis proceedings under Section 153A of the Act, has observed thus: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years and for the relevant assessment year or years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate: Provided also that ……….. Provided also that ………” 10. In Canara Housing Development Company, supra, the coordinate Bench of this Court while considering proceedings under Section 263 of the Act vis-à-vis proceedings under Section 153A of the Act, has observed thus: “10. Section 153A of the Act starts with a non obstante clause. The fetters imposed upon the Assessing Officer by the strict procedure to assume jurisdiction to reopen the assessment under Sections 147 and 148, have been removed by the non obstante clause with which sub section (1) of Section 153A opens. The time-limit within which the notice under Section 148 can be issued, as provided in Section 149 has also been made inapplicable by the non obstante clause. Section 151 which requires sanction to be obtained by the Assessing Officer by issue of notice to reopen the assessment under Section 148 has also been excluded in a case covered by Section 153A. The time-limit prescribed for completion of an assessment or reassessment by Section 153 has also been done away with in a case covered by Section 153A. With all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters, if need be. Therefore, it is clear even if an assessment order is passed under Section 143(1) or 143(3) of the Act, the Assessing Officer is empowered to reopen those proceedings and reassess the total income taking note of the undisclosed income, if any, unearthed during the search. After such reopening of the assessment, the Assessing Officer is empowered to assess or reassess the total income of the aforesaid years. The condition precedent for application of Section 153A is there should be a search under Section 132. Initiation of proceedings under Section 153A is not dependent on any undisclosed income being unearthed during such search. The proviso to the aforesaid section makes it clear the assessing officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. If any assessment proceedings are pending within the period of six assessment years referred to in the aforesaid sub-section on the date of initiation of the search under Section 132, the said proceeding shall abate. If such proceedings are already concluded by the assessing officer by initiation of proceedings under Section 153A, the legal effect is the assessment gets reopened. The block assessment roped in only the undisclosed income and the regular assessment proceedings were preserved, resulting in multiple assessments. Under Section 153A, however, the Assessing Officer has been given the power to assess or reassess the "total income" of the six assessment years in question in separate assessment orders. The Assessing Officer is empowered to reopen those proceedings and reassess the total income, taking note of the undisclosed income, if any, unearthed during the search. He has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters. This means that there can be only one assessment order in respect of each of the six assessment years, in which both the disclosed and the undisclosed income would be brought to tax. When once the proceedings are initiated under Section 153A of the Act, the legal effect is even in case where the assessment order is passed it stands reopened. In the eye of law there is no order of assessment. Re-opened means to deal with or begin with again. It means the Assessing Officer shall assess or reassess the total income of six assessment years. Once the assessment is reopened, the assessing authority can take note of the income disclosed in the earlier return, any undisclosed income found during search or and also any other income which is not disclosed in the earlier return or which is not unearthed during the search, in order to find out what is the "total income" of each year and then pass the assessment order. Therefore, the Commissioner by virtue of the power conferred under Section 263 of the Act gets no jurisdiction to initiate proceedings under the said provision because the condition precedent for initiating proceedings under Section 263 is any order passed under the Act by the Assessing officer is erroneous insofar as it is prejudicial to the interest of the revenue. Once the order passed by the Assessing officer gets reopened, there is no order which can be said to be erroneous insofar as it is prejudicial to the interest of the revenue which confers jurisdiction on the Commissioner to exercise the power of the jurisdiction. 11. …… On the contrary, it is expressly provided under Section 153A of the Act the Assessing Officer shall assess or reassess the "total income" of six assessment years which means the said total income includes income which was returned in the earlier return, the income which was unearthed during search and income which is not the subject matter of aforesaid two income….” 11. In M/s Lancy Constructions supra, the Co- ordinate Bench of this Court where one of us (Hon’ble SSJ) was a member, has observed thus: “5. We agree with the opinion of the Tribunal that additions could not have been made by the Assessing Officer without rejecting the books of account of the assessee, and also without there being any adverse comment made by the Assessing Officer with regard to the books of account that were maintained by the assessee, which were duly audited. 6. In our view, if assessment is allowed to be reopened on the basis of search, in which no incriminating material had been found, and merely on the basis of further investigating the books of accounts which had been already submitted by the assessee and accepted by the Assessing Officer at the time of regular assessment, the same would amount to the Revenue getting a second opportunity to reopen the concluded assessment, which is not permissible under the law. Merely because search is conducted in the premises of the assessee, would not entitle the Revenue to initiate the process of reassessment, for which there is a separate procedure prescribed in the statute. It is only when the conditions prescribed for reassessment are fulfilled that a concluded assessment can be reopened. The very same accounts which were submitted by the assesseee, on the basis of which assessment had been concluded, cannot be reappreciated by the Assessing Officer merely because a search had been conducted in the premises of the assessee.” 12. In Commissioner of Income Tax V/s. IBC Knowledge Park (P)Ltd., [(2016) 385 ITR 346 (Kar.), the coordinate Bench of this Court has referred to the decisions of M/s Lancy Constructions supra as well as Canara Housing Development Company supra along with other judgments cited at the Bar and has observed that the relevant sections as well as judicial precedents 12. In Commissioner of Income Tax V/s. IBC Knowledge Park (P)Ltd., [(2016) 385 ITR 346 (Kar.), the coordinate Bench of this Court has referred to the decisions of M/s Lancy Constructions supra as well as Canara Housing Development Company supra along with other judgments cited at the Bar and has observed that the relevant sections as well as judicial precedents would enunciate that, Section 158BD of the Act deals with undisclosed income of a third party. However, insofar as the incriminating material of the searched person or other person detected during the course of search is concerned, the same can be considered during the course of assessment. Further, such incriminating material must relate to undisclosed income which would empower the assessing officer to upset or disturb a concluded assessment. Otherwise, a concluded assessment would be disturbed without there being any basis for doing so which is impermissible in law. Even in the case of the searched person, the same reason would hold good as in the case of any other person. It has been held that detection or the existence of incriminating material is a must for disturbing the assessment already made and concluded but at the same time, search can be at three stages: (i) when reassessment is reinitiated; (ii) at the stage during the course of reassessment; (iii) where reassessment is altered by a different assessment in respect of the searched person or in respect of a third party. 13. In Principal Commissioner of Income Tax and Another V/s. BMR Energy Ltd. (ITA No.358/2018 and connected cases DD.08.01.2019), a coordinate bench of this Court has held that the judgment reported in the case of Canara Housing Development Company supra was not even considered in M/s Lancy Constructions supra and the latter decision was discussed at the stage of admission without even notice to the assessee. It has been observed that in M/s Lancy Constructions, the High Court was of the view that no substantial question of law would arise for consideration in the appeal and as such, the judgment reported in the case of M/s Lancy Constructions does not render the true position in law and it cannot be considered as a precedent. Accordingly, the order of the Tribunal based on the case of M/s Lancy Constructions was set aside and remanded to the Tribunal for fresh consideration in accordance with law. 14. In the case of Principal Commissioner of Income Tax V/s. Ramesh Bhai Jivraj Desai [(2020) 121 Taxxman.com 333 (Gujrat)], it has been held that having regard to the materials on record, the Tribunal is right in holding that once it is held that the assessment has attained finality, then the assessing officer, while passing independent assessment order under Section 153A read with 143 (3) of the Act cannot disturb the assessment/reassessment which has attained finality, unless the materials gathered in the course of proceedings under Section 153A of the Act establish that the reliefs granted in the final assessment/reassessment were contrary to the facts coming during the course of Section 153A proceedings. 15. The Hon’ble High Court of Gujarat in Principal Commissioner of Income Tax-4 V/s. Saumya Constructions (P) Ltd.[2017 81 Taxxman.com 292 (Gujarat)], has held thus: “14. Essentially, therefore, both the provisions contemplate search and requisition where the assessee is not likely to disclose his income. It appears that the object of both the provisions is to unearth the income which the assessee has not or is not likely to disclose. 15. The Hon’ble High Court of Gujarat in Principal Commissioner of Income Tax-4 V/s. Saumya Constructions (P) Ltd.[2017 81 Taxxman.com 292 (Gujarat)], has held thus: “14. Essentially, therefore, both the provisions contemplate search and requisition where the assessee is not likely to disclose his income. It appears that the object of both the provisions is to unearth the income which the assessee has not or is not likely to disclose. 15. On a plain reading of Sectioin153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under Section 132 or a requisition under Section 132A of the Act. Once a search or requisition is made, a mandate is cast upon the assessing officer to issue notice under Section 153A of the Act to the person, requiring him to furnish the return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Since the assessment under Section 153A of the Act is linked with search and requisition under Sections 132 and 132A of the Act, it is evident that the object of the section is to bring to tax the undisclosed income which is found during the course of or pursuant to the search or requisition. However, instead of the earlier regime of block assessment whereby, it was only the undisclosed income of the block period that was assessed, Section 153A of the Act seeks to assess the total income for the assessment year, which is clear from the first proviso thereto which provides that the assessing officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso makes the intention of the legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under Section 132 or requisition under section 132A, as the case may be, shall abate. Sub-Section (2) of Section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub-Section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years prior to the search or requisition stands abated and the total income of the assessee is required to be determined under Section 153A of the Act. Similarly, sub-section (2) provides for revival of any assessment or reassessment which stood abated, if any proceeding or any order of assessment or reassessment made under Section 153A of the Act is annulled in appeal or any other proceeding.” 16. In the decision of E.N.Gopakumar V/s. Commissioner of Income Tax (Central) [(2016) 75 16. In the decision of E.N.Gopakumar V/s. Commissioner of Income Tax (Central) [(2016) 75 Taxxman.com 215 (Kerala)], the Hon’ble High Court of Kerala has held that Section 153A is a provision which deals with assessment in case of search or requisition. Section153A (1) (a) authorizes the issuance of notice calling for filing of returns. Once that is done, it is well within the jurisdiction of the assessing authority to proceed with any lawful modes of assessment as prescribed in the Act. The statute nowhere makes it conditional that the department has to unearth some incriminating material to conclude some method against the assessee in events where the assessment is triggered by a notice under Section 153A (1)(a) of the Act. When such notice is triggered following the search, the assessment proceedings can be concluded in any manner known to law including under Section 143(3) of the Act or even144 of the Act, if need be. Assessment proceedings can be concluded even without any incriminating material being available against the assessee in the search under Section 132 of the Act on the basis of which the notice was issued under Section 153A (1)(a) of the Act. 17. The Hon’ble High Court of Allahabad in the case of Commissioner of Income Tax, Central, Kanpur .v. Raj Kumar Arora [(2014) 52 Taxmann.com 172 (Allahabad)], has held thus: “8. Section 153A of the Act along with Section 153B and 153C replaced the "Post Search Block Assessment Scheme" in respect of any search under Section 132A or requisition under Section 132A made after 31.05.2003. CBDT explained these provisions through circular dated 5.9.2003, which is reported in (2003) 263 ITR (St) 62. The said circular is as under: ………. 10. Under the block assessment proceeding under Chapter XIV-B only the undisclosed income found during the search and seizure operation were required to be assessed and the regular assessment proceedings were preserved. The introduction of Section 153A of the Act provides a departure from this proceeding. Under Section 153A of the Act, the Assessing Officer has been given the power to assess or reassess the total income of the assessment years in question in separate assessment orders. Consequently, there would be only one assessment order in respect of six assessment years in which total disclosed or undisclosed income would be brought to tax. Consequently, even though an assessment order has been passed under Section 143(1) (a) or under Section 143(3) of the Act, the Assessing Officer would be required to reopen these proceedings and reassess the total income taking notice of undisclosed income even found during the search and seizure operation. The fetter imposed upon the Assessing Officer under Sections 147 and 148 of the Act have been removed by the non obstante clause under Section 153A of the Act. Consequently, we are of the opinion that in cases where the assessment or reassessment proceedings have already been completed and assessment orders have been passed, which were subsisting when the search was made, the Assessing Officer would be competent to reopen the assessment proceeding already made and determine the total income of the assessee. The Assessing Officer, while exercising the power under Section 153A of the Act, would make assessment and compute the total income of the assessee including the undisclosed income, notwithstanding the assessee had filed the return before the date of search which stood processed under Section 143(1)(a) of the Act. 11. In the light of the aforesaid, the reasons given by the Tribunal that no material was found during the search cannot be sustained, since we have held that the Assessing Officer has the power to reassess the returns of the assessee not only for the undisclosed income, which was found during the search operation but also with regard to the material that was available at the time of 11. In the light of the aforesaid, the reasons given by the Tribunal that no material was found during the search cannot be sustained, since we have held that the Assessing Officer has the power to reassess the returns of the assessee not only for the undisclosed income, which was found during the search operation but also with regard to the material that was available at the time of the original assessment. We find that the Tribunal dismissed the appeal while relying upon the decision of a Coordinate Bench of the Tribunal in the case of Anil Kumar Bhatia Vs. ACIT (2010) 1 ITR (Trib.) 484 (Delhi). We find that the said decision of the Coordinate Bench of the Tribunal was set aside by the Delhi High Court in Commissioner of Income Tax Vs. Anil Kumar Bhatia (2012) 24 taxmann.com 98 (Delhi). We find that the Tribunal only dismissed the appeal on