M.P.Patel Infrastructure Pvt. Ltd., Ahmedabad V. The ACIT, (OSD)-I, Circle-4, Ahmedabad

ITA 2328/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6286 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 24-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Assessee Lawyers: M J SHAH
• Keywords: Retrospective amendment; Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NOS: 2328 & 2782/AHD/2013 (ASSESSMENT YEARS: 2009-10 & 2007-08) M.P. PATEL INFRASTRUCTURE PVT. LTD. D/415, SHIROMANI, OPP. OCEAN PARK SATELLITE, AHMEDABAD ASST. COMMISSIONER OF INCOME TAX (OSD)-I, CIRCLE4, AHMEDABAD V/S V/S ASST. COMMISSIONER OF INCOME TAX (OSD)-I, CIRCLE4, AHMEDABAD M.P. PATEL INFRASTRUCTURE PVT. LTD. D/415, SHIROMANI, OPP. OCEAN PARK SATELLITE, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAGCM2205G APPELLANT BY : SHRI M.J. SHAH, AR RESPONDENT BY : SHRI ANTONY PARIATH, SR. D.R . ( )/ ORDER DATE OF HEARING : 24 -03-201 7 DATE OF PRONOUNCEMENT : 03-04-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NOS. 232 8 & 2782/AHD/2013 . A.YS. 2009- 10 & 2007-08. 2 1. ITA NO. 2328 & 2782/AHD/2013 ARE APPEALS BY THE REV ENUE AND THE ASSESSEE PREFERRED AGAINST THE ORDER OF THE LD. CIT (A)-VIII, AHMEDABAD DATED 26.08.2013 PERTAINING TO A.YS. 2007-08 & 2009 -10 RESPECTIVELY. 2. AS BOTH THESE APPEALS HAVE COMMON FACTS, THEREFORE, THEY WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE. 3. IN THE IMPUGNED APPEALS, THE ONLY GRIEVANCE RELATES TO THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 4. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGA GED IN THE BUSINESS OF SOLID WASTE MANAGEMENT AND INFRASTRUCTURE CREATORS. IN ITS RETURN OF INCOME, THE ASSESSEE HAD CLAIMED DEDUCTION U/S. 80I A(4) WHICH IS AVAILABLE ON CONTRACT INCOME. 5. SUBSEQUENTLY, BY THE FINANCE ACT, 2009 AN EXPLANATI ON WAS ADDED BELOW SECTION 80IA(13) OF THE ACT GIVING A RETROSPECTIVE EFFECT FROM 01.04.2000/- BY WHICH THE INCOME DERIVED BY WORK CONTRACT WAS NO T ELIGIBLE FOR DEDUCTION U/S. 80IA(4) OF THE ACT. 6. SINCE, THE RETURN OF INCOME FOR THE IMPUGNED ASSESS MENT YEARS WERE ALREADY FILED BY THE ASSESSEE CLAIMING DEDUCTION U/ S. 80IA(4), AFTER THE AMENDMENT WITH RETROSPECTIVE EFFECT AS MENTIONED AB OVE, THE ASSESSEE ITA NOS. 232 8 & 2782/AHD/2013 . A.YS. 2009- 10 & 2007-08. 3 WITHDREW ITS CLAIM OF DEDUCTION U/S. 80IA(4). THE A .O. LEVIED PENALTY U/S. 271(1)(C) OF THE ACT ON FALSE CLAIM MADE BY THE ASS ESSEE. 7. IN OUR CONSIDERED OPINION, WHEN THE RETURN OF INCOM E WERE FILED FOR THE IMPUGNED ASSESSMENT YEARS, THE ASSESSEE WAS ENTITLE D FOR THE CLAIM OF DEDUCTION U/S. 80IA(4). NO PERSON CAN FORESEE THE F UTURE AMENDMENTS WHICH MAY BE BROUGHT IN THE ACT BY THE LEGISLATURE. THEREFORE, THE ASSESSEE COULD NOT FORESEE THE FUTURE AMENDMENT AND CLAIMED THE DEDUCTION ACCORDINGLY. HOWEVER, WE FIND THAT POST AMENDMENT T HE ASSESSEE IMMEDIATELY WITHDREW THE CLAIM OF DEDUCTION MADE U/ S. 80IA(4) OF THE ACT. THEREFORE, ON GIVEN FACTS AND CIRCUMSTANCES, WE DO NOT FIND THESE TO BE FIT CASES FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. WE, ACCORDINGLY, DISMISS REVENUES APPEAL IN ITA NO. 2782/AHD2013 AN D ALLOW ASSESSEES APPEAL IN ITA NO. 2328/AHD/2013. ORDER PRONOUNCED IN OPEN COURT ON 03 - 04- 20 17 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 03/04/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD