ITO 20(2)(3), MUMBAI V. PRAMUKH ENTERPRISES, MUMBAI

ITA 2244/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3323 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 21-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim; Revised return
• Section: 143(3); 133A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.2244/M/13 ( / ASSESSMENT YEAR: 2005-06) INCOME TAX OFFICER 20(2)(3) PIRAMAL CHAMBER, ROOM NO. 411, 4 TH FLOOR, LALBAUG, PAREL, MUMBAI - 400012 / VS. M/S. PRAMUKH ENTERPRISES 16/2, MATRU MANDIR, JAWAHAR NAGAR NO.2, GOREGAON (WEST) MUMBAI - 400062 ./ ./PAN/GIR NO. : AAGPF02472H ( /APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 14.12.2015 /DATE OF PRONOUNCEMENT: 16.03.2016 ! / O R D E R PER AMARJIT SINGH, JM: THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) - 31, MUMBAI [H EREINAFTER REFERRED TO AS THE LEARNED CIT(A)] DATED 05.12.20 12 RELEVANT TO THE A.Y.2005-06 WHEREIN LEARNED CIT(A) HAS DELETED THE PENALTY IMPOSED BY THE ASSESSING OFFICER TO THE TUNE OF RS. 1,05,70,770/- U/S. 271(1)(C) OF THE OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). THE LEVY OF PENALTY IN THIS CASE EMANATED F ROM THE ASSESSEE BY: NONE DEPARTMENT BY: SHRI K. RAVIKIRAN ITA NO.2244/MUM/2013 ASSESSMENT YEAR: 2005-06 2 DISALLOWANCES / ADDITIONS MADE BY THE ASSESSING OFF ICER TO THE RETURNED INCOME OF THE APPELLANT IN PURSUANCE TO TH E FINDINGS OF THE SURVEY ACTION U/S. 133A OF THE ACT UNDERTAKEN BY TH E DEPARTMENT. DURING THE SURVEY, THE ASSESSING OFFICER FOUND THAT THE APPELLANT HAD CLAIMED THE DEDUCTION U/S. 80IB(10) OF THE ACT BUT DID NOT FULFIL THE CONDITION THEREOF. ACCORDINGLY THE CLAI M FOR THIS DEDUCTION (WHICH THE APPELLANT HAD WITHDRAWN BY FIL ING A REVISED RETURN DATED 13.02.2006 AND ONCE AGAIN THEREAFTER V IDE A SUBSEQUENT REVISED RETURN DATED 31.03.2007) WAS DIS ALLOWED. WHILE COMPLETING THE ASSESSMENT U/S. 143(3) OF THE ACT, THE ASSESSING OFFICER HAS ALSO TAKEN INTO ACCOUNT OF TH E DOCUMENTS IMPOUNDED DURING THE SURVEY, WHICH SHOWED UNACCOUNT ED FUNDS IN THE HANDS OF THE APPELLANT. ON THIS COUNT, HE HAD M ADE AN ADDITION OF RS.59,20,000/- U/S. 69A OF THE ACT. REGARDING, THE APPELLANTS CLAIM U/S. 80IB(10) OF THE ACT, IT WAS OBSERVED THA T THAT THE SAME WHILE BEING ALLOWED AT THE FIRST APPELLANT LEVEL, W AS DISALLOWED BY THE TRIBUNAL. REGARDING, THE ADDITION OF RS.59,20, 000/- U/S. 69A, THE SAME WAS UPHELD TO THE TUNE OF RS.8,20,000/- BY THE LEARNED CIT(A) AND THE HONBLE INCOME TAX APPELLATE TRIBUNA L BOTH. THE LEARNED CIT(A) DELETED THE PENALTY LEVIED ON THE BA SIS OF CLAIM RAISED U/S. 80IB(10) AND CONFIRMED THE PENALTY IMPO SED ON ACCOUNT OF ADDITION U/S.69A OF THE ACT. 2. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND HAVE GONE THROUGH THE RECORD ITA NO.2244/MUM/2013 ASSESSMENT YEAR: 2005-06 3 CAREFULLY. BEFORE DECIDING THE MATTER OF CONTROVER SY IT IS NECESSARY TO ADVERT THE FINDING OF THE LEARNED CIT(A) ON RECO RD:- 3.2 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE. REGARDING THE CLAIM DEDUCTION U/S. 80IB(10), IT IS APPARENT THAT THE CLAIM HAS BEEN FOUND NOT ALLOWABLE BY THE ASSESSING OFFICER AND THE HONBLE ITAT, WHEREAS ON THE SAME SET OF FACTS, THE CIT(A) HAD CONCLUDED THAT THE CLAIM WAS ALLOWABLE. THUS, THERE IS A SITUATION WHERE DESPITE FACTS BEING UNCHANGED, THE APPLICABILITY OR OTHERWISE OF LEGAL PROVISIONS TO THE INSTANT CASE HAS BEEN DIFFERENTLY INTERPRETED BY THE AUTHORITIES CONCERNED. THERE IS HOWEVER, NOTHING TO SUGGEST THAT THIS VARIATION IN CONCLUSION IS DUE TO FURNISHING OF INACCURATE PARTICULARS BY THE APPELLANT. THE PHRASE FURNISHING OF INACCURATE PARTICULARS AND THE WORD INACCURATE HAS BEEN DISCUSSED AT LENGTH IN THE JUDGMENT OF THE APEX COURT IN THE CASE OF RELIANCE PETROPRODUCTS REPORTED IN 348 ITR 306 (SC) AND THE COURT HAS CLARIFIED THAT IT IS THE DETAILS GIVEN BY ANY ASSESSEE IN THE RETURN FILED THAT MUST ITA NO.2244/MUM/2013 ASSESSMENT YEAR: 2005-06 4 PROVIDE THE BASIS FOR THE LEVY OF PENALTY. THE COURT HAS FURTHER STATED THAT IN CASE, THERE IS NOT FINDING THAT THE DETAILS MENTIONED IN THE RETURN ARE ERRONEOUS OR FALSE, SIMPLE A CLAIM WHICH IS FOUND INADMISSIBLE WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THE INSTANT CASE, THE ALLOWANCE AND SUBSEQUENT DISALLOWANCE OF THE CLAIM U/S. 80IB(10) BY THE 1 ST AND 2 ND APPELLATE AUTHORITIES RESTED ON THE DIFFERING INTERPRETATIONS OF WHETHER THE CONDITION OF COMPLETION OF PROJECT ON OR BEFORE 31.03.2005 WOULD APPLY TO THE APPELLANT CONSIDERING THAT IT WAS CARRYING OUT A SLUM REHABILITATION SCHEME. THE TRIBUNAL HELD THE CLAIM DISALLOWABLE STATING THAT THE CLARIFICATION ISSUED F.NO.205/3/2001/ITA-II DATED 04.03.2001 RELIED UPON BY THE APPELLANT COULD NOT BE SAID TO BE A NOTIFICATION BY THE BOARD UNDER THE CONCERNED PROVISIONS AND THEREFORE THE APPELLANT COULD NOT BE HELD ELIGIBLE TO CLAIM THE DEDUCTION U/S. 80IB(10) HAVING FAILED TO COMPLETE THE PROJECT BY THE STIPULATED DATE. ITA NO.2244/MUM/2013 ASSESSMENT YEAR: 2005-06 5 3.3 A PERUSAL OF THE FACT SHEET OF THE CASE THUS MAKES IT AMPLY CLEAR THAT THE APPELLANT MADE A CLAIM, WHICH WAS NOT FOUND ALLOWABLE BY THE AO AND THE TRIBUNAL IN VIEW OF THE SPECIFIC INTERPRETATIONS OF THE LEGAL PROVISIONS. THE OBSERVATIONS OF THE APEX COURT IN THE CASE OF RELIANCE PETRO PRODUCTS THEREFORE SQUARELY APPLY HERE. ACCORDINGLY, PENALTY CANNOT BE HELD LEVIABLE ON THIS COUNT THERE BEING NON FURNISHING OF INACCURATE PARTICULARS OR CONCEALMENT OF INCOME WITH REGARD TO THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT. 2.1 ON PERUSAL OF THE ABOVE MENTIONED FINDING ON RE CORD, IT IS APPARENT THAT THE ASSESSING OFFICER AS WELL AS HON BLE INCOME TAX APPELLATE TRIBUNAL ARE OF THE VIEW THAT THE CLAIM U /S.80IB(10) OF THE ACT IS NOT REQUIRED TO BE ALLOWABLE WHEREAS ON THE SAME SET OF FACTS THE LEARNED CIT(A) HAS CONCLUDED THAT THE CLA IM WAS ALLOWABLE. IT IS NOT A CASE WHERE THE ASSESSEE HAS FURNISHED THE INACCURATE PARTICULARS OR CONCEALED THE INCOME. M ERELY RAISING THE WRONG CLAIM WHICH HAS BEEN DECLINED LATER ON BY THE AUTHORITY DOES NOT ATTRACT THE PROVISION U/S. 271(1)(C) OF TH E ACT TO LEVY THE PENALTY. IN THIS REGARD THE LEARNED CIT(A) HAS RIG HTLY APPLIED THE ITA NO.2244/MUM/2013 ASSESSMENT YEAR: 2005-06 6 LAW SETTLED IN RELIANCE PETRO PRODUCTS REPORTED IN 348 ITR 306 (SC). MERELY FINDING THE CLAIM WHICH IS NOT ALLOWA BLE IN ACCORDANCE WITH PROVISION OF LAW DOES NOT ATTRACT THE PROVISION OF PENALTY U/S. 271(1)(C) OF THE ACT. NO DOUBT IN THE SAID CIRCUMSTANCE THE LEARNED CIT(A) HAS PASSED THE ORDE R IN QUESTION JUDICIOUSLY AND CORRECTLY WHICH DOES NOT REQUIRE TO BE INTERFERE WITH AT THIS APPELLATE STAGE THEREFORE THE APPEAL O F THE REVENUE IS HEREBY ORDERED TO BE DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MARCH, 2016. SD/- SD/- (D.KARUNAKARA RAO) (AMARJIT SINGH) / ACCOUNTANT MEMBER # $ /JUDICIAL MEMBER % & MUMBAI; ' DATED : 16 TH MARCH, 2016 MP MP MP MP ITA NO.2244/MUM/2013 ASSESSMENT YEAR: 2005-06 7 !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ( ) / THE CIT(A)- 4. ( / CIT 5. )* + $$,- , ,- , % & / DR, ITAT, MUMBAI 6. + ./ 0 / GUARD FILE. / BY ORDER, ) $ //TRUE COPY// % / & ' (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI