Deputy Commissioner of Income-tax, V. Shri Krishna Haribhau Lohkare, Pune

ITA 237/PUN/2014

• Counselvise Citation: 23724514 RSA 2014
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 07-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIPIN GUJARATHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.237/PN/2014 ASSESSMENT YEAR : 2006-07 DY. COMMISSIONER OF INCOME TAX CIRCLE-4, PUNE .. APPELLANT V/S SHRI KRISHNA HARIBHAU LOHKARE PROP. HARI KRUPA BUILDERS NO.19, UNITED APARTMENT EAST STREET, CAMP, PUNE 411 001 .... RESPONDENT PERMANENT ACCOUNT NUMBER AAFPL4889D ASSESSEE BY : SHRI VIPIN GUJARATHI REVENUE BY : SHRI RAJESH DAMOR DATE OF HEARING : 20.1.2015 DATE OF PRONOUNCEMENT : 20.2.2015 O R D E R PER SUSHMA CHOWLA, J.M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF THE CIT(A) DATED 29 TH OCTOBER 2013, RELATING TO THE ASSESSMENT YEAR 2006 -07, AGAINST THE ORDER PASSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS UNDER:- 1. THE LD. CIT(A) ERRED IN DELETING THE PENALTY U/S 271(1)(C) WITHOUT EXAMINING THE FACTS AND EVIDENCES AVAILABLE ON RECORDS AND BROUGHT OUT BY THE A.O. IN THE PENALTY ORDER IN SUPPORT OF LEVY OF PENALTY U/S 271(1)(C). 2. THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FAC T THAT THE ASSESSEE HAD VIOLATED THE CONDITIONS STIPULATED U/S 80IB(10)(A)(I) AND IT WAS WELL WITHIN THE KNOWLEDGE OF TEHA SS THAT THE PROJECT WAS NOT COMPLETED BY 31.3.2008 AND THUS HAD CONCEALED INCOME BY FURNISHING INACCURATE PARTICULA RS OF INCOME. 2 SHRI KRISHNA HARIBHAU LOHKARE 3. THE LD. CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT THE BUILDINGS CONSTRUCTED AS PER THE FIRST PLAN WERE NO T A SEPARATE PROJECT FROM THE SANCTIONED REVISED LAYOUT AND BUIL DING PLAN AND THE ASSESSEE HAD CONSTRUCTED CONTIGUOUS BUILDINGS A S PER THE REVISED PLAN WHICH SHOWS THAT IT WAS ONE PROJECT AN D HAD THUS CONCEALED INCOME. 4. THE LD. CIT(A) ERRED IN FAILING TO APPRECIATE TH AT THE ASSESSEE COULD NOT PRODUCE THE REQUISITE COMPLETION CERTIFIC ATE FROM THE LOCAL AUTHORITY AS PER EXPLANATION (II) TO SECTION 80IB(10(A) OF THE ACT AND HAD THUS CONCEALED INCOME. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE W AS ENGAGED IN THE BUSINESS OF DEVELOPMENT AND CONSTRUCTION ACTIVI TY. THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT OF RS.1,20,66,344/- IN THE RETURN OF INCOME. THE A.O. HAD DISALLOWED THE SAID DEDUCTION CLAIMED U/S 80IB(10) OF THE ACT SINC E THE PROJECT OF THE ASSESSEE DID NOT FULFILL THE CRITERIA STIPULATED U/ S 80IB(10((A)(I) OF THE ACT, I.E., NON-COMPLETION OF THE PROJECT BY 31 ST MARCH 2008, WHEREAS THE PROJECT WAS APPROVED ON 30 TH NOVEMBER 2001. THE A.O. INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FU RNISHING INACCURATE PARTICULARS OF INCOME. THE SAID ADDITION MADE BY TH E A.O. WAS CONFIRMED BY THE CIT(A). THE A.O., PURSUANT THERETO HELD THAT THE ASSESSEE TO HAVE VIOLATED THE PROVISIONS OF SECTION 80IB(10)(A)(I) OF THE ACT BUT STILL HAD CLAIMED THE DEDUCTION IN THE RETURN OF INCOME. THE A.O. WAS OF THE VIEW THAT THE ASSESSEE HAD DELIBERA TELY MADE THE SAID CLAIM AND, HENCE, HAD FURNISHED INACCURATE PARTICUL ARS OF INCOME. THE A.O. LEVIED PENALTY U/S 271(1)(C) AT RS.40,25,330/- . 4. BEFORE THE CIT(A), THE ASSESSEE MADE ELABORATED SUB MISSIONS VIS--VIS ITS CLAIM OF DEDUCTION U/S 80IB(10) OF TH E ACT. IT WAS CONTENTION OF THE ASSESSEE THAT IT WAS ENTITLED TO PROPORTIONATE 3 SHRI KRISHNA HARIBHAU LOHKARE DEDUCTION U/S 80IB(10) OF THE ACT AND CONSEQUENTLY NO PENALTY 271(1)(C) WAS LEVIABLE. 5. THE CIT(A) VIDE PARA-3.3 NOTED THAT THE TRIBUNAL IN ASSESSEES OWN CASE HAD DECIDED THE QUANTUM APPEALS IN FAVOUR OF THE ASSESSEE VIDE ORDER 28 TH FEBRUARY 2013, IN ITA NO.937/PN/2010, HOLDING THAT THE ASSESSEE WAS ENTITLED TO CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF THE COMPLETED FLATS BEFORE THE PR ESCRIBED LIMIT AS EVIDENT FROM THE COMPLETION CERTIFICATE. HE THUS DE LETED THE PENALTY LEVIED U/S 271(1)(C) AS THE QUANTUM OF ADDITION / D ISALLOWANCE IN RESPECT OF WHICH THE IMPUGNED PENALTY WAS IMPOSED H AD BEEN DELETED BY THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ORDER D ATED 28 TH FEBRUARY 2013. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF THE CIT(A) IN DELETING THE SAID PENALTY LEVIED U/S 271(1)(C). 6. IT WAS FAIRLY ADMITTED BY THE D.R. FOR THE REVENUE THAT THE ORDER OF THE TRIBUNAL HAS NOT BEEN DISTURBED BY ANY OF TH E HIGHER FORUMS. THE A.R. FOR THE ASSESSEE PLACED RELIANCE ON THE OR DER OF THE CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WHILE COMPLETING THE ASSESSMENT, THE A.O. HAD DISAL LOWED THE CLAIM OF DEDUCTION U/S 80IB(10) IN THE HANDS OF THE ASSESSEE . THE SAID ADDITION HAS BEEN UPHELD BY THE CIT(A) PURSUANT TO WHICH THE A.O. LEVIED PENALTY U/S 271(1)(C) OF THE ACT. HOWEVER, THE TRIB UNAL, VIDE ORDER DATED 26 TH SEPTEMBER 2013 (SUPRA), HAS HELD THAT THE ASSESSEE WAS ENTITLED TO THE CLAIM OF THE DEDUCTION U/S 80IB(10) FOR THE RELEVANT ASSESSMENT YEAR. IN VIEW THEREOF, WHERE THE ADDITIO N MADE IN THE 4 SHRI KRISHNA HARIBHAU LOHKARE HANDS OF THE ASSESSEE HAS BEEN DELETED BY THE TRIBU NAL AND THE ISSUE HAVING BEEN DECIDED IN FAVOUR OF THE ASSESSEE, WE F IND NO MERIT IN THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. UPHOLDING THE ORDER OF THE CIT(A), WE DISMISS THE GROUND OF APPEALS RAISED BY THE REVENUE. 8. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED ON 20 TH DAY OF FEBRUARY, 2015. SD/ - (R.K. PANDA) ACCOUNTANT MEMBER SD/ - (SUSHMA CHOWLA) JUDICIAL MEMBER PUNE, DATED: 20 TH FEBRUARY, 2015. PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, PUNE CITY CONCERNED; (5) THE DR, ITAT, PUNE; (6) GUARD FILE. TRUE COPY BY ORDER (ASSTT. REGISTRAR) ITAT, PUNE