ITO WD 2(2), THANE V. MANOJ L JAGWANI, ULHASNAGAR

ITA 1569/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3133 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 22-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-02-2013
• Court: TRIBUNAL
• Department Lawyers: VIVEK BUTRA
• Assessee Lawyers: M P MAKHIJA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI RAJENDRA , ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 1569 /MUM./ 2013 ( ASSESSMENT YEAR : 20 0 9 10 ) INCOME TAX OFFICER WARD 2(2), 2 ND FLOOR MOHAN PLAZA, WAYLE NAGAR KHAD AKPADA, KALYAN (WEST) .. APPELLANT V/S SHRI MA N OJ L. JAGWANI 1 ST FLOOR, MAHAVIR PLAZA NEAR B.K. NO.1985 O.T. SECTION, ULHASNAGAR DSTRICT THANE 5 PAN AATPJ1175A .... RESPONDENT REVENUE BY : SHRI VIVEK BUTRA ASSES SEE BY : SHRI M.P. MAKHIJA DATE OF HEARING 22 .09.2015 DATE OF ORDER 30.09.2015 O R D E R PER SAKTIJIT DEY, J.M. THE AFORESAID APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 22 ND NOVEMBER 2012, PASSED BY THE LEARNED COMMISSIONER (APPEA LS) II, THANE, DELETING THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 2009 10. SHRI MA N OJ L. JAGWANI 2 2. BRIEFLY STATED THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION , THE ASSESSEE FILED HIS RETURN OF INCOME ON 30 TH SEPTEMBER 2009, DECLARING TOTAL INCOME OF ` 40,074, AFTER CLAIMING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FOR HOUSING PROJECT CONSTRUCTED BY HIM. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER, WHILE VERIFYING ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10), WAS OF THE VIEW THAT AS PER THE SAID PROVISION, THE TOTAL AREA OF THE HOUSING PROJECT SHOULD BE MO RE THAN ONE ACRE AND BUILT UP AREA OF EACH RESIDENT UNIT MUST BE LESS THAN 1500 SQ.FT. HE, THEREFORE, CALLED UPON THE ASSESSEE TO FURNISH DETAILS TO DEMONSTRATE THAT THE HOUSING PROJECT COMPLIES TO THE CONDITIONS IMPOSED UNDER SECTION 80IB(10) OF THE ACT. THOUGH THE ASSESSEE, IN RESPONSE TO THE QUERY RAISED BY THE ASSESSING OFFICER F URNISH ING SOME DETAILS SUBMITTED THAT THE HOUSING PROJECT COMPLIES TO THE CONDITIONS OF SECTION 80IB(10) BUT THE ASSESSING OFFICER T O FURTHER VERIFY THE FACT WHETHER THE ASSESSEE COMPLIED TO THE CONDITIONS IMPOSED IN PARA C OF SECTION 80IB(10) CONDUCTED AN ENQUIRY THROUGH THE INSPECTOR. AFTER VERIFYING THE REPORT OF THE INS PEC TOR, THE ASSESSING OFFICER AGAIN CALLED UPON THE ASSESSEE TO FURNISH THE DETAILS AND NAME OF ADDRESS OF ALL BOOKING PARTIES, LEDGER ACCOUNT WITH BANK STATEMENT TO JUSTIFY THE CLAIM MAD E. HOWEVER, AS ALLEGED BY THE ASSESSING OFFICER, AS THE ASSESSEE FAILED TO FURNISH THE INFORMATION CALLED FOR THE DEDUCTION CLAIMED UNDER SECTION 80IB(10), WAS DISALLOWED AND THE ASSESSMENT SHRI MA N OJ L. JAGWANI 3 WAS ACCORDINGLY COMPLETED. AS IT APPEARS , THE ASSESSEE DID NOT CHA LLENGE THE DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 80IB(10). B E THAT AS IT MAY, AS A RESULT OF ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 80IB(10), THE ASSESSING OFFICER INITIATED PROCEEDINGS FOR IMPOSITION OF PENAL TY UNDER SECTION 271(1)(C) OF THE ACT AND ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE ON 30 TH DECEMBER 2011. THOUGH THE ASSESSEE SUBMITTED HIS EXPLANATION OPPOSING THE INITIATION OF PROCEEDINGS UNDER SECTION 271(1)(C) BUT REJECTING THE EXPLANATION OF THE AS SESSEE, THE ASSESSING OFFICER PASSED AN ORDER ON 26 TH JUNE 2012, IMPOSING PENALTY OF ` 31,94,300, UNDER SECTION 271(1)(C) OF THE ACT ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME. 3. BEING AGGRIEVED BY THE PENALTY ORDER SO PASSED, THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE LEARNED COMMISSIONER (APPEALS), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, AS WELL AS PRINCIPLE LAID DOWN IN VARIOUS JUDICIAL PRECEDENTS, DEL ETED THE PENALTY ON THE GROUND THAT THERE IS NOTHING ON RECORD TO ESTABLISH THAT ASSESSEE HAS EITHER FURNISHED INACCURATE PARTICULARS OF INCOME OR HAS CONCEALED HIS INCOME. HE OBSERVED , THE DISALLOWANCE OF DEDUCTION UNDER SECTION 80IB(10) WAS MADE MERELY O N ACCOUNT OF NON SUBMISSION OF CERTAIN DETAILS REGARDING SALES EFFECTED BY THE ASSESSEE. SHRI MA N OJ L. JAGWANI 4 HE OBSERVED , ONLY BECAUSE DEDUCTION UNDER SECTION 80IB(10) WAS DISALLOWED, IT WILL NOT AUTOMATICALLY LEAD TO IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS IS EVIDENT, THE ENHANCEMENT OF INCOME RETURNED BY THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS, WAS AS A RESULT OF DISALLOWANCE OF ASSESSEES CLAIM OF DEDUCT ION UNDER SECTION 80IB(10) OF THE ACT. IT IS FURTHER EVIDENT , THE ASSESSING OFFICER HAS DISALLOWED ASSESSEES CLAIM OF DEDUCTION MAINLY FOR THE REASON THAT THE ASSESSEE FAILED TO FURNISH THE INFORMATION CALLED FOR. AS COULD BE SEEN FROM THE PENALTY ORDER P ASSED UNDER SECTION 271(1)(C) OF THE ACT, THE ASSESSING OFFICER HAS IMPOSED THE PENALTY UNDER SECTION 271(1)(C) BY OBSERVING THAT NON FURNISHING OF PARTICULARS / DETAILS CALLED FOR DURING THE ASSESSMENT PROCEEDINGS IN RELATION TO CLAIM UNDER SECTION 80IB A MOUNTS TO FURNISHING OF INACCURATE PARTICULARS OF INCOME. ON A PERUSAL OF THE ASSESSMENT ORDER AS WELL AS THE DISCUSSIONS MADE BY THE LEARNED COMMISSIONER (APPEALS) WHILE DELETING THE PENALTY, IT IS NOTICED THAT THE DISALLOWANCE OF CLAIM UNDER SECTION 80IB (10) OF THE ACT WA S ON THE ALLEGATION OF LACK OF INFORMATION SUPPLIED BY THE ASSESSEE. FURTHER, THERE IS NO CONCRETE EVIDENCE BROUGHT ON RECORD BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS DELIBERATELY CLAIMED THE DEDUCTION UNDER SECTION 80IB B EING CONS CIOUS OF THE FACT THAT HE IS NOT SHRI MA N OJ L. JAGWANI 5 ENTITLED TO SUCH DEDUCTION. DISALLOWANCE OF DEDUCTION CLAIMED IN THE RETURN OF INCOME MAY BE FOR VARIOUS REASONS BUT THAT AUTOMATICALLY DOES NOT LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS EITHER FURNISHED INACCURATE PARTI CULARS OF INCOME OR HAS CONCEALED H IS INCOME SO AS TO INVITE THE R IGO U R OF SECTION 271(1)(C) OF THE ACT. THE AFORESAID PRINCIPLE HAS ALSO BEEN LAID DOWN BY THE HON'BLE SUPREME COURT IN CIT V/S RELIANCE PETROPRODUCTS PVT. LTD., [ 2010 ] 322 ITR 158 (SC). MORE OVER, IN THE PRESENT CASE, THE ASSESSING OFFICER HIMSELF HAS NOT ALLEGED FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. HE HAS SIMPLY MENTIONED THAT NON FURNISHING OF DETAILS / INFORMATION IS AS GOOD AS FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OUR VIEW, THIS IS NOT A VALID REASON FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, AS THE ASSESSING OFFICER HAS NOT MADE OUT A CASE UNDER SECTION 271(1)(C) OF THE ACT. THAT BEING THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) WHICH IS, ACCORDINGLY, UPHELD BY DISMISSING THE GROUND RAISED BY THE REVENUE. 5. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT O N 30.09.2015 SD/ - RAJENDRA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED : 30.09.2015 SHRI MA N OJ L. JAGWANI 6 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CH OWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI