BHANSALI, J. - (1.) THESE appeals by the respective assesses under Section 260A of the Income Tax Act, 1961 ('the Act') arising out of similar nature orders and involving similar nature substantial questions of law have been considered together and are taken up for disposal by this common judgment. For convenience sake, facts from D.B. Income Tax Appeal No.53/2011 [M/s. Jai Steel (India), Jodhpur Vs. Assistant Commissioner of Income Tax, Jodhpur] are taken note of. This appeal by the assessee is directed against the order dated 19.08.2009 passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur ('ITAT') in relation to the assessment proceedings concerning the respondent assessee for the assessment years 2001-
(2.) , 2002-03 and 2000-01. 2. The substantial questions of law involved in this appeal have been indicated in the order of admission dated 18.03.2011, that may be noticed as under:- "(i) Whether Tribunal was justified in not examining the question as to whether sale-tax incentive availed by the assesses for running their business is a capital expenditure or revenue expenditure? (ii) Whether not examining of the issue mentioned in question No.1 by the Tribunal entails remand of the case to Tribunal for giving findings on the said issue? (iii) Whether Sale tax incentive availed of by the assesses is in the nature of capital receipts or revenue receipts and if so whether it is subjected to payment of tax? (iv) Whether Tribunal was justified in holding that case of the assessee relating to sale-tax incentive cannot be examined under Section 153A of the Act because it is a case of search?" The relevant background aspects of the matter could be noticed in the following: A search under Section 132(1) of the Act was conducted at various business premises of Suncity Alloys Group of Companies, Jodhpur, to which, the assessee firm belong and at the residence of directors/partners of various firms/companies on 20.02.2004. Several incriminating documents were recovered from the residential premises of such partners/directors and from business premises of the firms/companies of the group; notice under Section 153A of the Act was issued on 05.10.2004 for filing of return within 35 days of receipt of the notice, which was served on 12.10.2004; in compliance to this notice, return declaring income of 'NIL' was filed on 07.04.2005. In the return filed in response to the notice under Section 153A of the Act, the assessee, inter alia, claimed deduction of Sales Tax Incentive relying on decision in the case of ACIT v. Reliance Industries Ltd : (2004) 88 ITD 273. The said claim was not made in the original return filed under Section 139(1) of the Act and it was contended that such claim can be made in the return filed in response to notice under Section 153A of the Act as it was over riding all proceedings earlier taken overall.
(3.) ASSESSING Officer ('AO') by his assessment order dated 24.02.2006, inter alia, observed and held as under:- "The claim of the assessee is not primarily acceptable at this stage as this assessment is inconsiquent to search conducted u/s 132(1) of the Act on 20/02/04. There was no claim in the original return. The proceedings u/s 153A of the Act are analogous to proceedings u/s 147 of the Act to the extent that these proceedings are for the benefit of revenue and not of the assessee. The assessee cannot be permitted to convert the re- assessment proceedings as his appeal or revision in disguise, and seek relief in respect of items not earlier claimed in the original return. Reliance is placed on K Sudhakar S. Shanbhag v. Income Tax Officer reported in 241 ITR 865 (Mumbai) where in the decision in the case of judgment of Honorable Supreme Court in the case of CIT v. M/s. Sun Engineering Works Pvt. Ltd. reported in (1992) 198 ITR 297 (SC) has been referred to. The Honorable Supreme Court has held that the assessee cannot claim deduction neither claimed nor allowed in original assessment. Therefore, assessment proceeding initiated on the basis of action u/s 132 cannot be utilized by the assessee to seek relief not claimed earlier." ;