ITO 24(2)(3), MUMBAI V. KAPIL ASHOK BAJAJ, MUMBAI

ITA 1843/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2821 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 30-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim; Competent authority
• Section: 143(3); 133A; 2

Judgement Text

, , SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, SMC MUMBAI , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.1843/MUM/2015 ASSESSMENT YEAR: 2006-07 INCOME TAX ACT OFFICER 14(2)(3) ROOM NO. 609, 6 TH FLOOR PIRAMAL CHAMBERS, PAREL MUMBAI 400012 / VS. SHRI KAPIL ASHOK BAJAJ 9, SEA GLIMPSES 7 BUNGLOW, J.P. ROAD ANDHERI (W) MUMBAI 400061 ( / REVENUE) ( /ASSESSEE) PAN. NO. AFBPB7 764A ! ' #$ / DATE OF HEARING : 11/07/2016 ' #$ / DATE OF ORDER: 11/07/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE INSTANT APPEAL HAS BEEN FILED BY THE REVENUE FO R ASSESSMENT YEAR 2006-17 AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-36, MUMBAI DAT ED 22/01/2015, CHALLENGING DELETION OF PENALTY IMPOSED UNDER / REVENUE BY SHRI RAJESH OJHA, JCIT / ASSESSEE BY SHRI SANDESH RANE ITA NO.1843/MUM/2015 SHRI KAPIL ASHOK BAJAJ 2 SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HER EINAFTER THE ACT) ON THE PLEA THAT THE LEARNED FIRST APPELLATE A UTHORITY DID NOT APPRECIATE THE FACT THAT WRONG CLAIM OF DEDUCTI ON WAS MADE BY THE ASSESSEE UNDER SECTION 80IB(10) OF THE ACT AND FURTHER WITHOUT CONSIDERING THE DECISION FROM HONB LE APEX COURT IN DHARMENDRA TEXTILE PROCESSORS (306 ITR 277 ) (SC). 2. ON THE OTHER HAND, SHRI SANDESH RANE, LEARNED CO UNSEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION ARRIVED A T IN THE IMPUGNED ORDER BY CONTENDING THAT NEITHER THERE IS CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. THEREFORE PENALTY IS NO T LEVIABLE. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF AR E THAT THE ASSESSEE ORIGINALLY DECLARED NIL INCOME IN ITS RETU RN. A SURVEY ACTION UNDER SECTION 133A OF THE ACT WAS CARRIED OU T AT THE BUSINESS PREMISES OF THE ASSESSEE ON 24.08.2007. TH E ASSESSEE DID NOT CLAIM ANY ADDITIONAL INCOME AND PR ACTICALLY NOTHING REALLY MUCH TURNS DURING THE SURVEY. DURING THE YEAR THE ASSESSEE HAD INCLUDED THE PROFITS/RESULTS FROM B AND C WINGS OF VASTU PROJECT AT THANE. THE ASSESSEE CLAIM ED EXEMPTION/DEDUCTION UNDER SECTION 80IB(10) IN RESPE CT OF THE PROFIT FROM VASTU PROJECT. ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT DENYING THE CLAIMED DEDUC TION SOUGHT UNDER SECTION 80IB(10). THE LEARNED ASSESSIN G OFFICER IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. ITA NO.1843/MUM/2015 SHRI KAPIL ASHOK BAJAJ 3 4. ON APPEAL BEFORE THE LEARNED CIT(A) THE IMPUGNED PENALTY WAS DELETED AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 5. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCLUSION DR AWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSER TIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF KEPT IN JUXTAPOSI TION AND ANALYZED, I FIND THAT A PERUSAL OF THE FACT SHOWS THAT THE PENALTY WAS IMPOSED UNDER SECTION 271(1)(C) OF THE ACT WITH RESPECT TO DISALLOWANCE OF CLAIM MADE UNDER SECTION 80IB(10) OF THE ACT WITH REFERENCE TO B AND C WINGS OF VASTU PROJECTS AT THANE. BROADLY THE DISALLOWANCE WAS MADE BY THE ASS ESSING OFFICER THAT THE PROJECT ON WHICH CONSTRUCTION WAS MADE WAS HAVING THE AREA LESS THAN ONE ACRE AND SOME OF THE FLATS, SOLD BY THE ASSESSEE WERE EXCEEDING THE AREA OF 1000 SQ. FT. THE EXPLANATION OF THE ASSESSEE WAS NOT FOUND CONVINCIN G BY THE ASSESSING OFFICER. THERE IS NO DENYAL TO THE FACT T HAT THE PROJECT WAS COMPLETED ON THE BASIS OF PLANS APPROVE D BY THE COMPETENT AUTHORITY. SO FAR AS THE ISSUE OF AREA EX CEEDING 1000 SQ.FT. IT WAS EXPLAINED THAT THE FLATS WERE BO UGHT INDEPENDENT OF EACH OTHER AND AT THE LATER STAGE TH E BUYERS/ OCCUPANTS GOT THEM COMBINED. IT IS ALSO NOTED THAT WHILE ADJUDICATING THE QUANTUM ADDITION THE EXPLANATION O F THE ASSESSEE WAS ACCEPTED BY THE LEARNED FIRST APPELLAT E AUTHORITY AS IS MENTIONED IN PARA 5.7 OF THE IMPUGNED ORDER. CONSIDERING THE TOTALITY OF FACTS AND THE DECISION FROM HONBLE APEX COURT IN RELIANCE PETROPRODUCTS LTD. (322 ITR 152) (SC), CIT VS. FORTIS FINANCIAL SERVICES (ITA NO. 243 OF 2 011 AND 244 ITA NO.1843/MUM/2015 SHRI KAPIL ASHOK BAJAJ 4 OF 2011) (DEL), SHIVLAL DESAI & SONS (114 ITR 377) (BOM), INDERSONS LEATHERS (329 ITR 167) (P&H) I FOUND FORC E IN THE ARGUMENT OF THE LEARNED COUNSELS FOR THE ASSESSEE. IT IS NOT THE CASE OF THE REVENUE THAT EITHER THE ASSESSEE CO NCEALED ITS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THE HONBLE APEX COURT IN RELIANCE PETROPRODUCTS P. LTD. (SUPRA) CLEARLY HELD THAT IN ORDER TO EXPOSE THE AS SESSEE TO THE PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CANNOT BE INVOKED. BY ANY STR ETCH OF IMAGINATION, MAKING AN INCORRECT CLAIM IN LAW CANNO T TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. TH EREFORE IT IS OBVIOUS THAT IN ORDER TO ATTRACT THE PENALTY PRO VISION UNDER SECTION 2171(1)(C) EITHER THERE SHOULD BE CONCEALME NT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. THE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UP ON THE WRIT TEN FILED BY THE ASSESSEE BECAUSE WHICH IS THE BASIC DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INC OME. IN VIEW OF THE FACTUAL MATRIX AND THE JUDICIAL DECISIONS DI SCUSSED HEREINABOVE I FIND NO INFIRMITY IN THE CONCLUSION R ENDERED BY THE CIT(A). IT IS AFFIRMED. 6. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 11/07/2016. SD/- (JOGINDER SINGH) /JUDICIAL MEMBER ! MUMBAI; & DATED : 11/07/2016 ITA NO.1843/MUM/2015 SHRI KAPIL ASHOK BAJAJ 5 A? P.S / /. . . !'#$%$&' / COPY OF THE ORDER FORWARDED TO : 1. ()*+, / THE APPELLANT (RESPECTIVE ASSESSEE) 2. -.+, / THE RESPONDENT. 3. / / 0 ( ()* ) / THE CIT-9, MUMBAI. 4. / / 0 / CIT(A)-36 , MUMBAI, 5. 23 - , / ()*# (4 , ! / DR, SMC, ITAT, MUMBAI 6. 5 6!* / GUARD FILE. / BY ORDER, .2) - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI