Dy CIT, Pune V. M/s Rahul Construction Com, Pune

ITA 1258/PUN/2013

• Counselvise Citation: 125824514 RSA 2013
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 04-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANT KUMAR C LUEVA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NOS.1258 & 1259/PN/2013 (A.YS: 2005-06 & 2007-08) ITO, WARD-3(1), PUNE APPELLANT VS. M/S. RAHUL CONSTRUCTION COMPANY RAHUL CHAMBER, 12, KARVE ROAD, PUNE 411004 PAN: AAFFR2117L RESPONDENT APPELLANT BY : SHRI HEMANT KUMAR C LUEVA RESPONDENT BY : SHRI NIKHIL PATHAK DATE OF HEARING : 29.05.2014 DATE OF PRONOUNCEMENT : 29.05.2014 ORDER PER BENCH : BOTH THE APPEALS FILED BY THE REVENUE PERTAIN TO TH E SAME ASSESSEE ON SIMILAR POINT AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, [(IN SHORT CIT(A)] PUNE FOR A.YS. 2005-06 AND 2007-08, SO THEY ARE BEING DISPOS ED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.1258/PN/2013, THE REVENUE HAS FILED TH E APPEAL ON THE FOLLOWING GROUNDS. 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN CANCELLING THE PENALTY U/S 271(1)(C) WITHOUT IN ANY MANNER EXAMINING THE FACTS & EVIDENCES AVAILABLE ON RECORD S AND BROUGHT OUT BY THE ASSESSING OFFICER IN THE PENALTY ORDERS IN SUPPORT OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN DELETING THE PENALTY LEVIED WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD VIOLATED THE CONDITIONS STIPU LATED U/S.80IB(10)(A)(I) OF THE ACT AND BY CLAIMING THAT BUILDINGS C & D WERE SEPARATE HOUSING PROJECT EVEN THOUGH THE ENTIRE PROJECT WAS APPROVED BY A SINGLE LAYOUT PLAN HAD CO NCEALED THE INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN DELETING THE PENALTY WHEN THE ASSESSEE HAD CLAIMED WRONG DEDUCTION U/S.80IB(10) OF THE I.T.ACT, 1961 AND HAD THEREBY ATTEMPTED TO EVADE TAX BY FURNISHING INACCURATE PAR TICULARS OF INCOME AND CONCEALING ITS INCOME. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. 3. THE ASSESSEE IS A FIRM ENGAGED IN CONSTRUCTION B USINESS. THE ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB(10) OF I.T. ACT OF 1,86,92,040/-, WHICH WAS REJECTED AND CONSEQUENTLY, THE PENALTY U/S.271(1)(C) OF I.T. ACT WAS ALSO INITIATED FOR CO NCEALMENT OF INCOME AND INACCURATE PARTICULARS OF INCOME. AGAIN ST THE QUANTUM ADDITION, THE ASSESSEE HAS PREFERRED AN APP EAL, WHEREIN, THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFF ICER. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL, W HEREIN VIDE ITS ORDER DATED 06.07.2012, THE TRIBUNAL HAS SET-ASIDE THE ORDER AND DIRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION U /S.80IB(10) OF THE ACT. THUS, THE BASIS OF PENALTY I.E. THE ADDIT ION BY WAY OF DISALLOWANCE OF DEDUCTION U/S.80IB(10) DO NOT SURVI VE. IN SUCH A SITUATION, THE PENALTY WAS RIGHTLY DELETED BY THE C IT(A). ONCE THE BASIS FOR PENALTY DO NOT SURVIVE, THE PENALTY SO IM POSED BY THE ASSESSING OFFICER, WAS RIGHTLY DELETED BY THE CIT(A ), WHICH NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 4. A SIMILAR ISSUE AROSE IN ITA NO.1259/PN/2013 FOR A.Y. 2007- 08. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REA SONING, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF CIT(A ), WHO HAS DELETED THE PENALTY IN QUESTION ON THE SAME REASONING. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY OF 29 TH MAY, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED THE 29 TH MAY, 2014 GCVSR COPY TO:- 1) THE DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-II, PUNE 4) THE CIT-II, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, ITAT, PUNE.