Rajesh Pukhraj Raka, Bhusawal V. Asst.. Comm. of Income-tax, Jalgaon

ITA 1312/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9812 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 21-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINITA MENON
• Keywords: Difference of opinion
• Section: 143(3); 133A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1312/PN/2011 (ASSTT.YEAR 20 03-04) RAJESH PUKHRAJ RAKA, APPELLANT PROP. OF RAKA CONSTRUCION, GANDHI CHOWK, BHUSAWAL-425201 PAN:ADMPR4741E V. ACIT, CIRCLE-2, RESPONDENT INCOME TAX OFFICE, OLD B.J. MARKET, JALGAON -425001 APPELLANT BY : WRITTEN SUBMISSION RESPONDENT BY : SMT. VINI TA MENON DATE OF HEARING : 08/11/1 2 DATE OF PRONOUNCEMENT : 23-11-12 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL, THE ASSESSEE CHALLENGED THE IMPUGN ED ORDER OF THE LD CIT(A)- II NASHIK DATED 15.9.2011 FOR THE A.Y. 2 003-04 CONFIRMING THE PENALTY LEVIED BY THE A.O U/S. 271(1)(C ) OF THE AC T. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS : 1) THE LEARNED CIT(A) ERRED IN CONFIRMING THE PEN ALTY U/S 271(1)(C) SINCE, NEITHER PENALTY PROCEEDINGS WERE INITIATED N OR ANY SPECIFIC DIRECTION WAS NOTED IN THE ASSESSMENT ORDER DATED 24.03.06 FO R ISSUE OF NOTICE FOR PROPOSED PENAL ACTION BY THE LEARNED AO & ACCORDING LY THE WHOLE PENALTY PROCEEDINGS WERE WITHOUT JURISDICTION AND BAD IN LA W. 2) IN THE ALTERNATE AND WITHOUT PREJUDICE TO ABOVE, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF AO U/S 271(1)(C) R.W.S. 275 OF THE ACT WHICH WAS BARRED BY LIMITATION. 3) IN THE ALTERNATE AND WITHOUT PREJUDICE TO ABOVE, ALTHOUGH THE CLAIM OF DEDUCTION U/S 80 IB(10) BY THE ASSESSEE IS FOUND NOT ACCEPTABLE DUE TO DIFFERENCE OF OPINION, SAME DID NOT SUFFER FROM THE VICE OF NON DISCLOSURE/ CONCEALMENT ESPECIALLY WHEN ALL THE PARTICULARS OF INCOME WERE REFLECTED IN THE RETURN OF INCOME FILED, CLAIM OF THE ASSESSE E WAS BASED ON BONA FIDE CONSIDERATION AND ASSESSEE HAS UNRESERVEDLY DI SCLOSED ALL THE DOCUMENTS AND INFORMATION RELATING TO COMPUTATION O F HIS TOTAL INCOME. HENCE THE PENALTY LEVIED U/S 271(1)(C ) IS NOT JUST IFIABLE. 2 ITA NO.1312/PN/2011 RAKESH PUKHRAJ RAKA (A.Y. 2003-04) 3. THE ASSESSEE HAS FILED WRITTEN SUBMISSION IN THI S APPEAL. WE HAVE HEARD THE LD. D.R. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF THE HOUSES AND LAND DEVELOPMENT. THERE WAS A SURVEY ACTION U/S. 133A OF THE ACT AT THE OFFICE PREMISES OF THE ASSESSEE ON 12 TH MARCH 2003. THE ASSESSMENT OF THE ASSESSEE WAS COM PLETED U/S. 143(3) DETERMINING THE TOTAL INCOME OF RS. 30,21,290/-. T HE A.O. DENIED THE CLAIM OF DEDUCTION OF RS. 27,68,850/- U/S. 80 IB (1 0) OF THE ACT. THE LD CIT(A) CONFIRMED THE DECISION OF THE A.O. TO DENY THE CLAIM OF DEDUCTION U/S. 80 IB(10) TO THE ASSESSEE. AFTER RECEIVING TH E ORDER OF THE CIT(A) II, NASIK, THE A.O. LEVIED THE PENALTY OF RS.25,38, 468/- U/S. 271(1)(C) OF THE ACT ON 07 SEPTEMBER 2007. IN THE MEANTIME, THE LD CIT, NASIK PASSED AN ORDER U/S. 263 OF THE ACT ON 11.2.2008, B UT THE ISSUE OF THE DEDUCTION U/S. 80IB(10) WAS NOT THE SUBJECT MATTER AS IT WAS ALREADY DENIED TO THE ASSESSEE BY THE A.O. SO FAR AS THE I SSUE OF THE DEDUCTION U/S. 80 IB (10) IS CONSIDERED, THE ASSESSEE FILED A PPEAL BEFORE THE TRIBUNAL I.E. ITAT, A BENCH, PUNE, BEING ITA NO. 175/PN/2007. THE TRIBUNAL DISPOSED OFF THE APPEAL FILED BY THE ASSES SEE AND RESTORED THE ISSUE TO THE FILE OF THE A.O FOR FRESH CONSIDERATIO N. THE OPERATIVE PART OF THE ORDER OF THE TRIBUNAL IS AS UNDER : 6. AFTER GOING THROUGH THE ABOVE SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT ASSESSEE HAS CLAIMED DEDUCT ION U/S.80IB(10) IN RESPECT OF TWO RESIDENTIAL PROJECTS , NAMELY, AMARNATH NAGAR AND PANDHARINATH NAGAR IN BHUSAWAL. PROJECTS HAVE BEEN CLAIMED TO BE PIECE OF LAND OF M ORE THAN ONE ACRE EACH AND RESIDENTIAL UNITS HAVING BUILT UP AREA OF LESS THAN 150 SFT. STAND OF THE ASSESSING OFFICER HAS B EEN THAT ASSESSEE HAS SOLD THE PLOTS AND SUBSEQUENTLY THE CO NSTRUCTION THEREON HAS BEEN RAISED BY HIM AS A CONTRACTOR. SO CLAIM OF THE ASSESSEE IS NOT FIT IN FOUR CORNERS OF SECTION 80IB(10). ON OTHER SIDE THE LD. AUTHORISED REPRESENTATIVE RELIED ON THE DECISION OF RAGHAVA ESTATES LTD. (SUPRA) WHEREIN TH E FACTS STATED ABOVE, ASSESSEE HAS BEEN GRANTED RELIEF UNDE R THE PROVISIONS OF SECTION 80IB(10). ACCORDINGLY, CLAIM OF ASSESSEE UNDER SECTION 80IB(10) OF THE ACT BE ALLOWED. WE F IND THAT IN THE CASE OF RAGHAVA ESTATES LTD., ASSESSEE HAS INDE PENDENT HOUSES AS WELL AS GROUP HOUSING. IN CASE BEFORE US , IT IS THE CASE OF ONLY INDEPENDENT CONSTRUCTION ON THE PLOTS OF ABOVE TWO PROJECTS. SO THE FACTS IN THE CASE OF RAGHAVA ESTATES LTD., ARE APPLICABLE TO THE EXTENT OF INDEPENDENT HOUSES ON BUILT UP AREA ON RESPECTIVE PLOTS SEEMS TO BE IDENTICAL TO T HE ASSESSEES CASE. BUT THERE IS ABSENCE OF GROUP HOU SING IN THE CASE OF RAGHAVA ESTATES LTD. ISSUE OF CONSTRUCTION ON PLOT AND CLAIM OF ASSESSEE UNDER PROVISIONS OF SECTION 80IB( 10) NEEDS FURTHER PROBE TO REACH A REASONABLE CONCLUSION OF I SSUE AT HAND. SO IN THE INTEREST OF JUSTICE WE SET ASIDE T HE ORDERS OF 3 ITA NO.1312/PN/2011 RAKESH PUKHRAJ RAKA (A.Y. 2003-04) ASSESSING OFFICER AND CIT(A) AND RESTORE THE ISSUE TO THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE SAME AS PER FACTS AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HE ARING TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO CANVASS HIS CASE IN THE LIGHT OF RAGHAVA ESTATES LTD. (SUPRA). AT THE SAME TIME, THE ASSESSING OFFICER IS AT LIBERTY TO TAKE INTO ACCOUN T THE LEGAL POSITION AS AVAILABLE AT RELEVANT POINT OF TIME INC LUDING RATIO OF RAGHAVA ESTATES LTD. (SUPRA). SINCE WE ARE RESTORI NG THE ISSUE FOR THE REASON STATED ABOVE, WE ARE REFRAININ G TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. AS QUANTUM IS SET ASIDE TO THE FILE OF THE A.O, & H ENCE, THE ISSUE OF LEVY OF PENALTY U/S. 271(1)(C ) IS ALSO SET ASIDE TO THE FILE OF THE A.O. TO DECIDE THE SAME DE NOVO AFTER PASSING THE ORDER IN COMPLIANCE OF THE DIRECTIONS OF THE TRIBUNAL IN ITA NO. 175/PN/2007 DATED 29/6/2012. NEEDLESS TO SAY THAT THE A.O SHOULD GIVE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE AS PER THE PRINCIPLES OF NATURAL JUSTI CE, IF HE DECIDES TO LEVY THE PENALTY. 11. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 23RD NOVEMBER 2012. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (R.S.PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 23RD NOVEMBER, 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-II, NASHIK 4. THE CIT(A) II, NASHIK 5. THE D.R. B BENCH, PUNE 6. GUARD FILE /- TRUE COPY-/ BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE