Per Bench - These appeals involve common grounds in respect of the claim of the assessee u/s 80IA (4) of the Income Tax Act, 1961 ("the Act" for short). The issue was discussed before us with reference to the facts of the case for assessment year 2004-05. The grounds taken by the assessee in this appeal are as under :-

1. "On the facts and in the circumstances of the case and in law, the CIT(A) erred in not appreciating that the order passed by the Assessing Officer is without jurisdiction and bad in law as the jurisdiction u/s 153A is vitiated.

2. The Commissioner (Appeals) erred in confirming the disallowance of deduction of Rs. 1,25,77,637/- u/s 80IA(4) of the Act.

3. The CIT(A) erred in relying on the decision of the Appellate Tribunal in the case of Container Corporation of India Ltd. v. ACIT [ 30 SOT 284 (Del.)], without appreciating that the facts in the present case are different from that of the aforesaid case.

4. The Commissioner (Appeals) failed to appreciate that the appellant is covered by the definition of the term "infrastructure facility" given in Explanation to section 80IA(4)(i) of the Act as "Ports".

5. The Commissioner (Appeals) erred in not following circular No. 793 dated 23^rd June, 2000 and clarification dated 16^th December, 2005 issued by the CBDT which is binding on the Income Tax Authorities.

6. The Commissioner (Appeals) failed to appreciate that sub-clause (aa) of section 7 of the Customs Act, 1962 clarifies that the Customs Ports are the places which are identified and demarcated for the unloading of imported cargo and the loading of exported cargo and, therefore, the Container Freight Stations would be Customs Ports with reference to the Customs Law and, therefore, it would be qualified for the benefit of section 80-IA(4)(i) of the Act.

7. In the alternative and without prejudice, the Commissioner (Appeals) failed to appreciate that the Container Freight Station is an Inland Port and therefore, it is an infrastructure facility within the meaning of section 80-IA(4) of the Act.

8. The order of the Commissioner (Appeals) is bad in law and without jurisdiction."

1.1. Appeals were heard by the Division Bench. It came to the conclusion that two questions, mentioned in reference u/s 255 (3) dated 19.1.2011, should be considered by the special bench. The findings in this respect are contained in paragraph nos. 4.1 and 5, which are reproduced below :-

4.1 "Having heard both the sides and perused the relevant material on record, it is noticed that the assessment years under consideration are 2004-05 to 2009-10. The Delhi Bench of the Tribunal in Container Corporation of India Ltd. (supra) also considered assessment years 2003-04 to 2005-06. Some of the arguments raised by the Ld. Sr. A.R., in the proceedings before us, were also raised, considered and rejected by the Tribunal. At the same time, it is also true that there is no reference to certain relevant material in the Delhi Bench order, such as Notification S.O.744 (E) dated 1.9.1998 (copy placed at page 118 of the paper book), letter of Director, CBDT, to all Chief Commissioners of Income-tax dated 16.12.2005 (copy placed at page 120 of the paper book) etc., which may have some bearing on the issue.

5. Under such circumstances, we propose the following two questions :

1. "Whether, on the facts and in law, the scope of assessment u/s 153A encompasses additions, not based on any incriminating material found during the course of search"?

2. "Whether, on the facts and in the circumstances of the case, the Ld. CIT (Appeals) was justified in upholding the disallowance of deduction u/s 80IA(4) of the Act, on merits"?"

1.2 Consequently, the Hon'ble President, Income Tax Appellate Tribunal, constituted the special bench to decide following questions :-

1. "Whether, on the facts and in law, the scope of assessment u/s 153A encompasses additions, not based on any incriminating material found during the course of search?"

2. "Whether, on the facts and in the circumstances o