Deputy Commissioner of Income-tax, V. M/s. Sharada Construction & Investment company, Pune

ITA 2008/PUN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85148 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 18-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.2008/PN/2013 (ASSESSMENT YEAR : 2008-09) DY. COMMISSIONER OF INCOME TAX, CIRCLE 3, PUNE. . APPELLANT VS. M/S SHARADA CONSTRUCTION & INVESTMENT COMPANY, 11/1, SHARADA CENTRE, ERANDWANE, PUNE 411 004. PAN : AADFS6325H . RESPONDENT DEPARTMENT BY : SHRI P. S. NAIK ASSESSEE BY : NONE DATE OF HEARING : 30-09-2014 DATE OF PRONOUNCEMENT : 21-11-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGA INST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE D ATED 28.06.2013 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 29.06.2011 PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL, THE SOLITARY DISPUTE RAISED BY T HE REVENUE IS AGAINST THE ACTION OF THE CIT(A) IN DELETING PENALTY OF RS.5,27 ,831/- IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE RESPONDENT- ASSESSEE INSPITE SERVICE OF NOTICE AND THEREFORE TH E APPEAL OF THE REVENUE IS BEING DISPOSED-OFF AFTER HEARING THE APPELLANT-REVE NUE ON MERITS AND EX-PARTE QUA THE RESPONDENT-ASSESSEE IN TERMS OF RULE 25 OF THE APPELLATE TRIBUNAL RULES, 1963. ITA NO.2008/PN/2013 4. IN BRIEF, THE RELEVANT FACTS ARE THAT ASSESSEE I S A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND GENERATION OF POWER FROM WINDMILL. FOR THE ASSESSMENT YEAR 2008-09, AS SESSEE FILED A RETURN OF INCOME DECLARING TOTAL INCOME OF RS.2,36,45,840/- W HICH WAS SUBJECT TO A SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT ON 08.12. 2010 WHEREIN THE TOTAL INCOME WAS ASSESSED AT RS.2,72,72,340/-. THE DIFFE RENCE BETWEEN THE REPORTED AND THE ASSESSED INCOME WAS RS.15,52,899/- WHICH REPRESENTED ASSESSEES CLAIM FOR DEDUCTION U/S 80-IA(4) OF THE ACT WITH RESPECT TO THE BUSINESS OF WINDMILL, WHICH WAS DISALLOWED BY THE A SSESSING OFFICER. SUBSEQUENTLY, THE ASSESSING OFFICER PASSED AN ORDER U/S 271(1)(C) OF THE ACT DATED 29.06.2011 WHEREBY ASSESSEE WAS HELD GUILTY O F FURNISHING INACCURATE PARTICULARS OF INCOME AND/OR CONCEALMENT OF INCOME QUA THE AFORESAID DISALLOWANCE OF THE CLAIM U/S 80-IA(4) OF THE ACT. THE ASSESSING OFFICER IMPOSED A PENALTY OF RS.5,27,831/- U/S 271(1)(C) OF THE ACT WHICH WAS EQUIVALENT TO 100% OF THE TAX SOUGHT TO BE EVADED O N THE AMOUNT OF CLAIM OF DEDUCTION U/S 80-IA(4) OF THE ACT. 5. ASSESSEE CHALLENGED THE LEVY OF PENALTY U/S 271( 1)(C) OF THE ACT BEFORE THE CIT(A). THE CIT(A) HAS HELD THAT MERELY BECAUS E THE ASSESSEE HAS CLAIMED A DEDUCTION U/S 80-IA(4) OF THE ACT WHICH W AS NOT ACCEPTABLE TO THE REVENUE IT COULD NOT BE CONSTRUED AS FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. IN COMING TO SUCH CONCLUSION, THE CIT(A) HAS PRIMARILY RELIED UPON THE ORDER OF THE CIT(A) IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 DATED 30.03.2012 WHEREIN PENALTY IMPOSED U/S 271(1) (C) OF THE ACT ON SIMILAR DISALLOWANCE WAS DELETED. IN THIS BACKGROUND, THE REVENUE IS IN APPEAL BEFORE US. ITA NO.2008/PN/2013 6. AT THE TIME OF HEARING, THE LD. DEPARTMENTAL REP RESENTATIVE HAS REFERRED TO THE ORDERS PASSED BY THE LOWER AUTHORIT IES ON THIS ASPECT. HOWEVER, THE LD. DEPARTMENTAL REPRESENTATIVE QUITE FAIRLY POINTED OUT THAT THE ORDER OF THE CIT(A) FOR ASSESSMENT YEAR 2004-05 DAT ED 30.03.2012, WHICH HAS BEEN RELIED UPON BY THE CIT(A) IN THE INSTANT YEAR, HAS SINCE BEEN APPROVED BY THE TRIBUNAL VIDE ORDER IN ITA NO.1619/PN/2012 D ATED 30.07.2014. A COPY OF THE SAID ORDER HAS ALSO BEEN PLACED ON RECORD. 7. IN VIEW OF THE AFORESAID FACTUAL MATRIX, WE FIND NO REASON TO INTERFERE WITH THE IMPUGNED ORDER OF THE CIT(A), WHICH IS IN LINE WITH THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR IMMEDIATELY PRECEDING ASSESSMENT YEAR OF 2004-05 DATED 30.07.2014 (SUPRA). AS A CON SEQUENCE, THE ACTION OF THE CIT(A) IS HEREBY AFFIRMED AND REVENUE FAILS ON THIS ASPECT. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2014. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 21 ST NOVEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE