DUSHYANT DEVELOPMENT CORPORATION, MUMBAI V. DCIT WD 13(2), MUMBAI

ITA 2285/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1898 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-06-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 21-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: MANJU SI SODIA; B V JHAVERI SHRI PRAVIN M SHAH
• Keywords: Reasonable cause; Wrong claim; Revised return
• Section: 133A; 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI D. MANMOHAN, V. P. AND SHRI SANJAY AROR A, A.M. ITA NO. : 2285/MUM/2011 ASSESSMENT YEAR: 2004-05 DUSHYANT DEVELOPMENT CORPORATION 260, SAMUEL STREET, VADGADI, MUMBAI-400 003 [ PAN NO.AAAFD 1206 H ] VS. DY. COMMISSIONER OF INCOME TAX-13(2), AAYAKAR BHAVAN, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B. V. JHAVERI, SHRI PRAVIN M. SHAH & MS. MANJU SISODIA RESPONDENT BY : SHRI A. B. KOLI DATE OF HEARING : 11.12.2012 DATE OF PRONOUNCEMENT : 01.02.2013 ORDER PER SANJAY ARORA, A.M. : THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)24, MUMBAI (CIT(A) FOR SH ORT) DATED 31.01.2011, CONFIRMING THE LEVY OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2004-05 IN ITS CASE BY T HE ASSESSING OFFICER (A.O.) VIDE ORDER DATED 24.03.2009. 2.1 THOUGH THE APPEAL RAISES AS MANY AS FIVE GROUND S, THE SAME IN SUBSTANCE ONLY AGITATES THE IMPUGNED PENALTY LEVIED IN THE SUM OF RS.17,87,820/-. IT WOULD BE RELEVANT TO RECOUNT THE BACKGROUND FACTS OF THE CASE, WHICH FIND MENTION BOTH IN THE ASSESSMENT ORDER (DATED 29.11.2006) AS WELL AS THE PENALTY ORD ER BY THE A.O. THE ASSESSEE, A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CONTRAC TORS, FILED ITS RETURN OF INCOME ON 01.11.2004, I.E., A DUE DATE, AT AN INCOME OF RS. N IL. THE SAME BORE A DEDUCTION U/S.80- ITA NO. 2285/MUM/2011 (A.Y. 2004-05) DUSHY ANT DEVELOPMENT CORPORATION VS. DY. CIT 2 IB(10) OF THE ACT AT RS.79,83,468/-. A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED AT THE ASSESSEES BUSINESS PREMISES AT SAMUEL STREET, VADG ADI, MUMBAI ON 30.12.2005 TO VERIFY THE ASSESSEES CLAIM FOR DEDUCTION U/S.80-IB, WHICH COULD NOT BE SUBSTANTIATED BY IT. IT, ACCORDINGLY, FILED A REVISED RETURN ON 29.03.2006 DECLARING INCOME AT RS.49.83 LAKHS, I.E., AFTER DEDUCTING RS.30 LAKHS ON ACCOUNT OF REM UNERATION TO PARTNERS, WITHDRAWING ITS ENTIRE CLAIM FOR DEDUCTION U/S.80-IB(10). THE SAME WAS NOT CONSIDERED BY THE REVENUE AS A REVISED RETURN U/S.139(5) INASMUCH AS THE REVI SION HAD BEEN MOTIVATED BY THE DETECTION OF A WRONG CLAIM BY THE DEPARTMENT THROUG H A SURVEY CONDUCTED IN PURSUANCE TO THE ASSESSMENT PROCEEDINGS INITIATED BY SERVICE OF NOTICE U/S.143(2), PLACING RELIANCE ON THE DECISIONS IN THE CASE OF CIT VS. J.K.A. SUBRAMANIA CHETTIAR [1977] 110 ITR 602 (MAD) AND ADDL. CIT V. RADHEY SHYAM [1980] 123 ITR 125 (ALL.). THE ASSESSEES CASE WAS THAT IT HAD UNDERTAKEN THE CONSTRUCTION OF BUIL DING COMMONLY KNOWN AS HARIDAS PARK, WITH WINGS A TO G. THE CONSTRUCTION OF THE PROJECT COMMENCED PRIOR TO 01.10.1998, SO THAT IT DID NOT QUALIFY FOR DEDUCTIO N U/S.80-IB(10). THE ASSESSEES CLAIM WAS QUA ON THE CONSTRUCTION OF THE WINGS C & D, PART OF WH ICH WAS SOLD DURING THE YEAR, THE CONSTRUCTION OF WHICH COMMENCED ONLY AFTER 01.1 0.1998, SO THAT THE PROJECT BEING APPROVED, THE SAME QUALIFIED FOR DEDUCTION U/S.80-I B(10). THE SAME STOOD REJECTED BY THE REVENUE AS DIFFERENT WINGS OF A PROJECT DID NOT CON STITUTE DIFFERENT PROJECTS BY THEMSELVES AND, ADMITTEDLY, THE CONSTRUCTION OF THE PROJECT STOOD COMMENCED MUCH PRIOR TO 01.10.1998, I.E., DURING THE YEAR 1986-87. EVE N FOR ARGUMENT SAKE, IF EACH WING WAS TO BE TREATED AS A SEPARATE PROJECT, THE LAND AVAIL ABLE FOR EACH WING WOULD STAND REDUCED TO LESS THAN 1 ACRE. THE ASSESSEE FILED AN APPEAL B EFORE THE FIRST APPELLATE AUTHORITY, CHALLENGING THE NON ACCEPTANCE OF ITS REVISED RETU RN AS A VALID RETURN U/S. 139(5) OF THE ACT, CLAIMING THAT THERE WAS NOTHING ADVERSE FOUND OR DETECTED BY THE REVENUE, AND THAT THE SAID REVISION, WITHDRAWING THE CLAIM U/S. 80-IB (10), WAS ONLY TO BUY PEACE AND AVOID LITIGATION. THE FIRST APPELLATE AUTHORITY, VIDE IT S ORDER DATED 03.07.2007 (PB PGS. 61 63), WAS OF THE VIEW THAT THE MATTER IS NOT APPEALABLE I NASMUCH AS THE SAME IS ONLY RELEVANT IN THE CONTEXT OF INITIATION OF PENALTY U/S. 271(1)(C) OF THE ACT, WHICH ARE SEPARATE AND DISTINCT PROCEEDINGS. THE ASSESSEE HAVING WITHDRAW N ITS CLAIM, THE VALIDITY OR OTHERWISE ITA NO. 2285/MUM/2011 (A.Y. 2004-05) DUSHY ANT DEVELOPMENT CORPORATION VS. DY. CIT 3 OF THE SAID WITHDRAWAL PER REVISION WOULD ARISE O NLY IN THE CONTEXT OF THE PENALTY PROCEEDINGS, SO THAT THE ASSESSEES CHALLENGE WAS P REMATURE AND COULD NOT BE ENTERTAINED. 2.2 PENALTY U/S.271(1)(C) WAS SUBSEQUENTLY LEVIED O N THE SAME BASIS, I.E., THAT THE CONSTRUCTION OF PHASE-2 OF THE COMPLEX HARIDAS PARK , COMPRISING BUILDINGS A, B, C AND D (ALSO KNOWN AS NEW HARIDAS PARK), AND THE CONST RUCTION OF WHICH STARTED ONLY AFTER 01.10.1998, DID NOT CONSTITUTE A SEPARATE PROJECT B Y ITSELF, AND WAS ONLY A CONTINUATION OF THE EARLIER PROJECT. FURTHER, EVEN IF EACH WING OF THE PROJECT WAS TO BE CONSIDERED AS A SEPARATE PROJECT BY ITSELF, THE AREA AVAILABLE PER WING WOULD FALL BELOW ONE ACRE, SO THAT THE ASSESSEES CLAIM WAS EVEN THEORETICALLY NOT VAL ID/ACCEPTABLE. 2.3 IN APPEAL, THE ASSESSEE RAISED SEVERAL GROUNDS, WHICH STAND ENUMERATED AT PGS. 2 TO 7 OF THE IMPUGNED APPELLATE ORDER. THE ASSESSEES C LAIM FOR DEDUCTION U/S.80-IB(10), TO WHICH IT WAS NOT ELIGIBLE, STOOD WITHDRAWN ONLY CON SEQUENT TO THE DISCOVERY OF ITS INVALIDITY PER SURVEY PROCEEDINGS ON 30.12.2005. TH ERE WAS NO BASIS FOR THE ASSESSEES CLAIM INASMUCH AS THERE IS NO DIFFERENTIATING FACTO R BETWEEN DIFFERENT WINGS OF THE HOUSING PROJECT, ALL OF WHICH CONSTITUTE AND FORM P ART OF A SINGLE PROJECT. EVEN TAKING THE SEPARATE WINGS TO CONSTITUTE SEPARATE PROJECTS WOUL D NOT HELP THE ASSESSEE INASMUCH AS THE AREA PER WING WOULD FALL BELOW ONE ACRE, WHICH REPRESENTS A BASIC, QUALIFYING CONDITION FOR CLAIM U/S.80-IB(10). AS SUCH, THE AS SESSEES CLAIM OF HAVING WITHDRAWN ITS CLAIM ONLY TO SECURE PEACE WITH THE DEPARTMENT, REL YING ON THE DECISION BY THE HON'BLE APEX COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL [2001] 251 ITR 9 (SC), IS NOT MAINTAINABLE. THE DECISION IN THE CASE OF TELEBUILD CONSTRUCTION (P) LTD. VS. ACIT ( IN ITA NO.1164/MUM/2006), ALSO RELIED UPON BY THE ASSE SSEE, WAS ALSO FOUND BY HIM TO BE DISTINGUISHABLE, AS THE MATTER HAD BEEN TAKEN BY TH E ASSESSEE U/S.264. IN FACT, THE ASSESSEE HAD NOT EVEN APPEALED AGAINST THE DISALLOWANCE OF I TS CLAIM; RATHER, PREFERRING TO WITHDRAW IT IN VIEW OF ITS UNTENABILITY. THE DECIS ION IN THE CASE OF CIT VS. BACKBONE ENTERPRISES [2010] 6 TAXMANN.COM 3(GUJ.) WAS ALSO FOUND DISTIN GUISHABLE, AS THE CLAIM HAD BEEN WITHDRAWN BY FILING A VALID REVISED RETURN , WHICH WAS NOT THE CASE IN THE INSTANT ITA NO. 2285/MUM/2011 (A.Y. 2004-05) DUSHY ANT DEVELOPMENT CORPORATION VS. DY. CIT 4 CASE. HE, THEREFORE, CONFIRMED THE PENALTY, RELYIN G ON THE DECISIONS IN THE CASE OF K.P. MADHUSUDHANAN V. CIT [2001] 251 ITR 99 (SC) AS WELL AS RELIANCE PETRO PRODUCTS PVT. LTD . [2010] 322 ITR 158 (SC), REPRODUCING A PART THERE OF WHEREIN IT STANDS CLARIFIED THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY TH E ASSESSEE; THAT BEING ONLY THE DOCUMENT WHERE THE ASSESSEE FURNISH THE PARTICULARS OF HIS INCOME (REFER PARA 12 OF THE IMPUGNED ORDER). AGGRIEVED, THE ASSESSEE IS IN FURT HER APPEAL. 3.1 BEFORE US, THE MAIN PLANK OF THE ASSESSEES ARG UMENTS WAS THAT THERE WERE TWO CONCEIVABLE VIEWS, AND THAT IT SHOULD NOT, THEREFOR E, BE PENALISED FOR HAVING ADOPTED ONE OF THEM AND/OR FOR WITHDRAWING ITS CLAIM IN THE FAC TS AND CIRCUMSTANCES OF THE CASE TO AVOID LITIGATION. TWO CONTENTIONS THAT ARISE IN THE CONTEXT OF ITS CLAIM FOR DEDUCTION U/S.80-IB(10) ARE IN RESPECT OF THE AREA AS WELL AS THE DATE OF COMMENCEMENT OF THE HOUSING PROJECT. WITH REFERENCE TO A CERTIFICATE ( DATED 14.07.1999) BY ITS ARCHITECT, M/S. J. P. PAREKH & SONS, IT WAS SOUGHT TO BE CANVASSED THAT THE AREA UNDER THE SECOND PHASE OF THE PROJECT, I.E., WINGS A TO D, WAS MORE THAN O NE ACRE. THERE WERE SEVERAL CHANGES MADE IN THE PLAN, REQUIRING ITS FRESH APPROVAL, WHI CH WAS GRANTED BY THE MUNICIPAL CORPORATION OF GREATER BOMBAY ON 07.08.1999, WITH T HE CORRESPONDING WORK ORDER FOR CONSTRUCTION OF WINGS C & D BEING ISSUED ON 27.08.2 001, WHICH SPECIFIES THE DATE OF COMMENCEMENT OF WORK AS 10.08.2001 (PB PGS. 27, 112 ). IT WAS ON ACCOUNT OF THIS REVISION IN THE PLAN THAT THE TDR STOOD ENHANCED TO A LARGE EXTENT, SO THAT WHILE THE WINGS E, F & G OF THE PROJECT WERE FOR GROUND FLOOR + 4 FLOORS, THE OTHER WINGS, I.E., A TO D, WERE FOR GROUND + 7 FLOORS. THE WINGS A AND B WERE CONSTRUCTED AND SOLD DURING THE PREVIOUS YEARS RELEVANT TO THE A.YS 2001-02 AND 2002-03. THE ASSESSEE HAVING SUFFERED LOSSES AND ALSO HAVING SUFFICIENT BROUGHT FORWARD LOSSES, THERE WAS NO OCCASION TO CLAIM DEDUCTION U/S.80-IB(10), WHICH AROSE FOR T HE FIRST TIME ONLY FOR THE CURRENT YEAR ON SALE OF THE FLATS CONSTRUCTED UNDER WINGS C & D . THERE WERE, THUS, SUFFICIENT REASONS FOR THE ASSESSEE TO CLAIM DEDUCTION THERE-UNDER. EV EN SO, COULD THE ASSESSEES CLAIM, WHICH STANDS THOUGH WITHDRAWN, BE SAID TO BE SO UNR EASONABLE SO AS TO JUSTIFY A LEVY OF PENALTY U/S.271(1)(C)? RELIANCE WAS PLACED ON THE D ECISIONS BASED ON THE PROPOSITION THAT ITA NO. 2285/MUM/2011 (A.Y. 2004-05) DUSHY ANT DEVELOPMENT CORPORATION VS. DY. CIT 5 THE PENALTY IS NOT LEVIABLE IN THE CASE OF BONA FIDE CLAIM, FOR WHICH ALL THE DETAILS ARE ON RECORD, AND TO THAT WITHDRAWAL OF CLAIM TO BUY PEAC E AND SAVE PROTRACTED LITIGATION WOULD NOT ATTRACT PENALTY. 3.2 THE LD. DR, ON THE OTHER HAND, RELIED ON THE OR DERS OF THE AUTHORITIES BELOW, STATING THAT THERE WAS NO CASE FOR TWO REASONABLE VIEWS OR OF TWO CONTENTIONS ARISING IN RESPECT OF THE ASSESSEES CLAIM, AND WHICH STOOD, THEREFORE, W ITHDRAWN BY THE ASSESSEE ON BEING FOUND TO BE NOT VALID, I.E., NOT PERMISSIBLE UNDER THE LAW, ON SURVEY HELD ON 30.12.2005. THE PENALTY STANDS, THUS, RIGHTLY LEVIED AND WAS PR AYED FOR CONFIRMATION. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 THE BASIS OF THE REVENUES CHARGE IS THAT THE REVISION OF INCOME TAX RETURN BY THE ASSESSEE WAS MADE ONLY UPON DETECTION OF ITS CLAIM AS FALSE UPON A SURVEY CARRIED OUT ON 30.12.2005 . HOWEVER, WE DO NOT FIND ANYTHING ON RECORD WHICH WOULD SHOW US AS TO WHAT EXACTLY WAS FOUND DURING THE SURVEY. WITH REGA RD TO THE VERIFICATION OF THE ASSESSEES IMPUGNED CLAIM, THE SAME COULD NO DOUBT BE CARRIED OUT, AS INDEED IT WAS, IN THE COURSE OF THE ASSESSMENT PROCEEDINGS U/S.143(3) , WHICH COMMENCED WITH THE SERVICE OF NOTICE U/S.143(2) DATED 18.07.2005 (PB. PG. 38). THAT IS NOT TO SAY THAT THE ASSESSE ES CLAIM PER ITS ORIGINAL RETURN, WITH REFERENCE TO WH ICH ONLY THE PENALTY FOR CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF INCOME IS TO B E CONSIDERED, BECOMES VALID, BUT ONLY THAT THERE IS NOTHING TO BRUSH ASIDE OR CAST THE RE VISION AS NOT BONA FIDE . THE ASSESSEES CLAIM, WITHOUT DOUBT, DOES NOT MERIT ACCEPTANCE. TH IS IS FOR THE REASON THAT, NOTWITHSTANDING THE REVALIDATION OF THE APPROVED PL ANS AND ISSUE OF COMMENCEMENT CERTIFICATE IN RESPECT OF PHASE 2 OF THE PROJECT, I T IS ONLY A CONTINUATION OF THE SAME PROJECT, THOUGH CONSTRUCTED LATER. BEING AN APPROVE D PROJECT, MEETING THE QUALIFYING CRITERIA OF AREA OF LAND (MINIMUM 1 ACRE), AND OF R ESIDENTIAL UNITS WITH A MAXIMUM BUILT UP AREA OF 1000 SQ. FT., THE ASSESSEE CONSIDERED TH E PROFIT AS ARISING IN ITS RESPECT AS BEING ELIGIBLE FOR DEDUCTION U/S.80-IB(10). THE SAME, T HOUGH NOT VALID, AS THE WINGS A, B, C ITA NO. 2285/MUM/2011 (A.Y. 2004-05) DUSHY ANT DEVELOPMENT CORPORATION VS. DY. CIT 6 AND D, THOUGH CONSTRUCTED SUBSEQUENTLY, AND AS PER A REVISED PLAN, ARE PART OF THE SAME PROJECT WHICH STOOD APPROVED MUCH EARLIER, AND THE CONSTRUCTION OF PART OF WHICH, BEING WINGS E, F AND G, STARTED WAY BACK IN THE 1980S, AN D IN FACT COMPLETED PRIOR TO 01.10.1998. REVALIDATION OF THE APPROVED PLANS, WHI CH WE FIND TO BE REVALIDATED FROM TIME TO TIME, AS UP TO 25.05.2000 VIDE A LETTER DAT ED 07.08.1999 BY THE MUNICIPAL CORPORATION OF GREATER BOMBAY (PB PG. 26), WOULD NO T MAKE IT A CASE OF EITHER A FRESH APPROVAL OR OF A NEW PROJECT. FURTHER, AGAIN, THERE IS NO QUESTION OF TREATING WINGS C & D AS A SEPARATE PROJECT, AS SOUGHT TO BE PROJECTED BE FORE US BY THE LD. AR, WHICH, IF AT ALL, WOULD HAVE TO BE RECKONED ON PER WING BASIS, IN WH ICH CASE THE LAND SIZE WOULD FALL BELOW ONE ACRE EACH, AS THE REVENUE IS AT PAINS TO DRIVE HOME. 4.2 SO, HOWEVER, EVEN AS WE FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE ITS EXPLANATION, WE FIND ITS CASE AS FALLING U/S.273B O F THE ACT, WHICH IS A SEPARATE AND DISTINCT PROVISION, OPERATING INDEPENDENT OF AND NO TWITHSTANDING THE RIGOUR OF THE PENALTY PROVISION ITSELF. THE SAME SAVES PENALTY, INTER ALIA , U/S.271(1)(C), WHERE THE ASSESSEE CAN SHOW A REASONABLE CAUSE, AND WHICH WE FIND IT TO HA VE IN THE INSTANT CASE. THIS IS NOT FOR THE REASON EITHER OF ANY CONFUSION WITH REGARD TO T HE AREA OF THE PROJECT OR THE DATE OF ITS COMMENCEMENT, BUT THE VERY FACT THAT THE CONSTRUCTI ON OF THE WINGS A TO D STARTED MUCH SUBSEQUENT TO THE OTHER PART OF THE PROJECT, SO THA T IT WAS CONSIDERED AS PHASE 2 OF THE PROJECT, BEING EVEN TITLED SEPARATELY AS NEW HARID AS PARK. 4.3 IT IS, THUS, THE SECOND PHASE OF THE PROJECT, C ONSTRUCTION OF WHICH COMMENCED SUBSEQUENT TO 01.10.1998, WHICH, IN OUR OPINION, FO RMS A REASONABLE GROUND FOR THE ASSESSEE IN CONSIDERING THE PROFITS IN ITS RESPECT AS QUALIFYING FOR DEDUCTION U/S.80-IB(10). IT MAY BE APPRECIATED AND BORNE IN MIND THAT, APART FROM THE LONG TIME LAG (OF OVER A DECADE) THAT ATTENDS THE CONSTRUCTION OF THE TWO PH ASES OF THE PROJECT, THE SECOND PHASE REQUIRED EXTENSIVE MODIFICATION OF THE PLANS. AS EX PLAINED BY THE LD. AR, WITH REFERENCE TO THE MATERIAL ON RECORD, WHILE THE WINGS A TO D A BUT A 60 FT. DP ROAD, AS PER THE EARLIER PLAN IT WAS RESERVED FOR PLAY GROUND WHICH ABUTTED THE LAND. IT IS FOR THESE ITA NO. 2285/MUM/2011 (A.Y. 2004-05) DUSHY ANT DEVELOPMENT CORPORATION VS. DY. CIT 7 CONSIDERATIONS THAT WE FIND THE ASSESSEE TO HAVE A REASONABLE GROUND FOR BELIEVING THAT THE CONSTRUCTION OF WINGS A TO D FORMED A SEPARATE PROJ ECT BY ITSELF. THE TERM PROJECT IS NOT DEFINED OR SPECIFIED UNDER THE PROVISION, SO TH AT THERE COULD BE CIRCUMSTANCES WHERE IT IS LIABLE TO BE CONSIDERED AS, OR WHICH MAKE IT REA SONABLE TO CONSIDER IT AS A SEPARATE PROJECT. THE LAW IS TO BE CONSIDERED FROM THE STAND -POINT OF A BUSINESSMAN, WHO WOULD DEFINITELY WANT TO AVAIL OF DEDUCTION FROM TAX IF H E CONSIDERS HIMSELF TO HAVE A REASONABLE BASIS FOR BEING ENTITLED TO IT, SO THAT A DEGREE OF FLEXIBILITY IS TO BE ALLOWED IN INTERPRETING A PROVISION, IN THE CONTEXT OF, AND GIVEN THE FACTS AND CIRCUMSTANCES OF THE CASE. THERE IS NO CASE OF THE ASSESSEE HAVING FURNISHED ANY INFORM ATION OR PARTICULARS OF INCOME PER ITS RETURN, I.E., AS TO THE PRIMARY FACTS, WHICH WERE E ITHER NOT CORRECT OR FALSE. 4.4 IN VIEW OF THE FOREGOING, IN OUR CONSIDERED VIE W, THE ASSESSEE HAS BEEN ABLE TO MAKE OUT A REASONABLE BASIS FOR HAVING CLAIMED THE DEDUCTION. THAT THE ASSESSEE IMMEDIATELY WITHDREW ITS CLAIM, FILING A REVISED RE TURN, WOULD FURTHER REINFORCE ITS CLAIM FOR HAVING ACTED ONLY IN A REASONABLE AND A BONA FIDE MANNER. THE REVENUE, IN OUR VIEW, HAS WITHOUT EXAMINING THE BONA-FIDES OF THE SAID WI THDRAWAL, CAME TO THE CONCLUSION OF THE SAME BEING NOT SO, SOLELY ON THE PREMISE OF THE ASSESSEE HAVING CONCEDED THE CLAIM. IN OUR CONSIDERED VIEW, THEREFORE, THE ASSESSEES C ASE MERITS ACCEPTANCE. 5. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON THIS 01 ST DAY OF FEBRUARY, 2013 SD/- SD/- - ( D. MANMOHAN ) ( SANJAY ARORA ) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DT: 01.02.2013 COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T. 4. CIT (A) 5. THE DR, D BENCH, ITAT, MUMBAI ITA NO. 2285/MUM/2011 (A.Y. 2004-05) DUSHY ANT DEVELOPMENT CORPORATION VS. DY. CIT 8 BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI