The Income Tax Officer, Ward-2(1) (1), RAJKOT-GUJARAT V. M/s BBEL STPL (JV), RAJKOT-GUJARAT

ITA 116/RJT/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6868 (ITAT-RAJKOT)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SONTAKKE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV , JUDICIAL MEMBER ./ ITA NO . 116 / RJT / 20 1 7 / ASS TT. YEAR : 2010 - 2011 ITO, WARD - 2(1)(1) RAJKOT. VS M/S.BBEL STPL(JV) KCL HOUSE, AMIN MARG CORNER 150 FEET RING ROAD RAJKOT. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI ARVIND SONTAKKE, DR / DATE OF HEARING : 3 1 / 1 0 /201 7 / DATE OF PRONOUNCEMENT: 31 / 1 0 /201 7 / O R D E R PER PRAMOD KUMAR , ACCOUNTANT MEMBER : REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF THE LD.CIT(A) - 2, RAJKOT DATED 25.1.2017. 2. SOLE GRIEVANCE OF THE REVENUE IS THA T THE LD.CIT(A) HAS ERRED IN DELETING PENALTY OF RS.15,94,242/ - WHICH WAS IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSES S EE HAS FILED ITS RETURN OF INCOME ON 30.9.2010 DEC LARING NIL INCOME. O N SCRUTINY OF THE ACCOUNTS IT REVEALED TO THE ASSESSING OFFICER THAT THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.54,79,357/ - UNDER SECTION 80IA(4) OF THE INCOME TAX ACT. THE LD.AO INVITED EXPLANATION OF THE ASSESSEE AS TO HOW DEDUCTION U NDER SECTION 80IA(4) IS ADMISSIBLE TO IT. THE ASSESSEE CONTENDED THAT IT HAS DONE INFRASTRU C TURAL WORK ASSIGNED BY THE GOVERNMENT I.E. NATIONAL AIRPORT AUTHORITY FOR CONSTRUCTING AIRPORT RUNWAY. THE ITA NO . 116 /RJT/201 7 2 ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE HAS NOT DEVELOPED ANY INFRASTRUCTURE RATHER HE WORKED AS CONTRACTOR, THERE FORE, HE DISALLOWED THE CLAIM OF THE ASSESSEE. THE LD.AO THEREAFTER INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND ULTIMATELY IMPOSED A PENALTY OF RS.15,94,242/ - . ON APPEAL, THE LD.CIT(A) HA S OBSERVED THAT SIMILAR DISALLOWANCE WAS MADE I N THE ASSESSMENT YEAR 2009 - 10, O N A P P E A L THE LD.CIT(A) HAS DELETED THE DISALLOWANCE AND ACCEPTED THE STAND OF THE ASSESSEE THAT IT WAS ENTITLED FOR GRANT OF DEDUCTION UNDER SECTION 80IA(4). THIS ORDER OF THE LD.CIT(A) WAS UPHELD BY THE TRIBUNAL IN ITA NO .507/RJT/2012. CONSIDE RING THIS ASPECT, THE LD.CIT(A) DELETED THE IMPUGNED PENALTY. 4. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT THE ASSESSING OFFICER HAS TR E ATED THE ASSESSE E AS A CONTRACTOR AND NOT A DE V E LOPER. THIS STAND OF THE ASSESSING OFFICER WAS NOT ACCEPTED BY THE LD.CIT(A) IN THE QUANTUM APPEAL FOR THE ASSTT.YEAR 2009 - 10. SIMILAR D ISALLOW A NCE WAS MADE IN THAT ASSESSMENT YEAR . THUS, CONSIDERING THIS DEVELOPMENT AND TREATING THE ASSESSEE AS A DEVE LOPER BY THE LD.CIT(A) IN ASSTT.YEAR 2009 - 10, WHICH WAS AFFIRMED BY THE ITAT, WE ARE OF THE VIEW THAT THERE CANNOT BE ANY ALLEGATION OF DELIBERATE CONCEALMENT OF INCOME AT THE END OF THE ASSESSEE. THE LD.CIT(A) HAS APPRECIATED THE FACTS IN RIGHT PERSPECTI VE, AND THEREFORE, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE LD.CIT(A). HENCE, THE APPEAL OF THE REVENUE IS DISMISSED. 5 . IN THE RESULTS, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE CO URT ON 31 ST OCTOBER, 201 7 AT RAJKOT . S D / - S D / - ( RAJPAL YADAV) JUDICIAL MEMBER ( PRAMOD KUMAR ) ACCOUNTANT MEMBER RAJKOT ; DATED 3 1 / 1 0 /201 7