Income-tax Officer, Pune V. M/s. J.K. Builders, Pune

ITA 1764/PUN/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8472 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 20-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1764/PN/2013 (A.Y:2006-07) ITO, WARD-8 (2), PUNE APPELLANT VS. M/S. J.K.BUILDERS S.NO.122/1+2+3, DWARKADHEESH RESIDENCY, PIMPLES SAUDAGAR, PIMPRI, PUNE 411027 PAN: AAEFJ8403A RESPONDENT APPELLANT BY : SHRI RAJESH DAMOR RESPONDENT BY : NONE DATE OF HEARING : 08.09.2014 DATE OF PRONOUNCEMENT : 09.09.2014 ORDER PER SHAILENDRA KUMAR YADAV : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DA TED 14.06.2013 FOR A.Y. 2006-07 ON THE FOLLOWING GROUND S. 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE P ENALTY LEVIED U/S.271(1)(C) OF THE IT ACT, WITHOUT CONSIDE RING THE ISSUES INVOLVED AND IGNORING THE MERITS OF THE CASE ? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT ON THE BAS IS OF THE SUBMISSION MADE BY THE ASSESSEE THAT THE QUANTUM ADDITION IN RESPECT OF WHICH PENALTY HAS BEEN LEVIE D BY THE ASSESSING OFFICER HAS BEEN DELETED BY THE HON'BLE I TAT, WITHOUT VERIFYING THAT THE DEPARTMENT HAS ALREADY G ONE IN FURTHER APPEAL AGAINST THE ORDER OF HON'BLE ITAT AN D THE MATTER IS PENDING BEFORE THE HON'BLE HIGH COURT ? ITA NO.1764/PN/13 M/S. J.K. BUILDERS 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER A NY OF THE ABOVE GROUNDS OF APPEAL. 2. THE ASSESSEE IS BUILDER & DEVELOPER. THE ASSESS EE FILED RETURN OF INCOME FOR A.Y. 2006-07 ON 11.10.2006 CLA IMING DEDUCTION U/S 80IB(10) OF THE ACT OF RS.1,24,08,812 /- IN RESPECT OF THE PROJECT 'DWARKADHEESH GARDEN' AND DECLARING TOT AL INCOME OF RS.NIL. ORDER U/S 143(3) OF THE ACT DATED 29.12.20 08 WAS PASSED BY THE ASSESSING OFFICER DISALLOWING CLAIM OF DEDUC TION U/S 80IB(10) OF THE ACT AND ASSESSING TOTAL INCOME AT R S.1,24,08,812/-. THE ASSESSING OFFICER DISALLOWED CLAIM U/S 80IB(10) OF THE ACT RELYING ON THE GOVERNMENT APPROVED VALUER'S REPORT THAT THE BUILT UP AREA INCLUDING AREA OF TERRACE & CANOPY IN RESPE CT OF ROW HOUSES NO.1, 8 & 17 OF THE PROJECT EXCEED THE MAXIM UM BUILT UP AREA OF 1500 SQ.FT. WHICH WAS A PRE-CONDITION FOR A VAILING BENEFITS OF SECTION 80IB(10) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 2.1 BEING AGGRIEVED, THE ASSESSEE FILED APPEAL AGAI NST THE ORDER U/S 143(3) OF THE ACT DATED 29.12.2008 AND THE CIT( A) DISMISSED ASSESSEE'S APPEAL VIDE ORDER DATED 28.06.2010. THE REAFTER THE ASSESSING OFFICER PASSED PENALTY ORDER U/S 271(1)(C ) OF THE ACT DATED 26.03.2012 LEVYING PENALTY U/S 271(1)(C) OF T HE ACT AMOUNTING TO RS.41,76,806/-. 2.2 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE A UTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF THE ASSESSEE AND HAVING CONSIDERED THE SAME, THE CIT(A) HAS ALLOWED THE ASSESSEES APPEAL. THE SAME HAS BEEN OPPOSED B EFORE US ON BEHALF OF THE REVENUE, INTER ALIA, HAS SUBMITTED TH AT THE CIT(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY LEVIED U/S.27 1(1)(C) OF THE IT ITA NO.1764/PN/13 M/S. J.K. BUILDERS ACT. ON THE OTHER HAND, NONE APPEARED. SO, THE MA TTER IS BEING DECIDED EXPARTE. 2.3 AFTER GOING THROUGH THE ARGUMENTS OF THE LEARNE D DEPARTMENTAL REPRESENTATIVE AND MATERIAL ON RECORD, WE FIND THAT SINCE THE QUANTUM ADDITION IN RESPECT OF WHICH THE PENALTY WAS LEVIED HAD BEEN DELETED BY ITAT IN ITA NO.112/PN/20 11 FOR THE YEAR UNDER CONSIDERATION VIDE ITS ORDER DATED 23.11 .2012. IN VIEW OF UNDISPUTED FACTS THAT THE QUANTUM ADDITION WHICH WAS BASED ON PENALTY IN QUESTION, THE CIT(A) WAS JUSTIFIED IN DE LETING THE PENALTY LEVIED BY THE ASSESSING OFFICER. THIS REASONED FIN DING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 9 TH DAY OF SEPTEMBER, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED THE 9 TH SEPTEMBER, 2014 GCVSR COPY TO:- 1) THE DEPARTMENT 2) ASSESSEE, 3) THE CIT(A)-V, PUNE 4) THE CIT-V, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, PUNE.