Deputy Commissioner of Income-tax, V. Bhujbal Construction Co., Pune

ITA 238/PUN/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88924 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 07-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNITA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.238/PN/2014 ASSESSMENT YEAR : 2007-08 DY. COMMISSIONER OF INCOME TAX CIRCLE-4, PUNE .. APPELLANT V/S BHUJBAL CONSTRUCTION COMPANY GAT NO.12/29, PASHAN TAL. HAVELI, PUNE 411 008 .... RESPONDENT PERMANENT ACCOUNT NUMBER AAFFB7317L ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SMT. SUNITA RAO DATE OF HEARING : 20.1.2015 DATE OF PRONOUNCEMENT : 11.02.2015 O R D E R PER SUSHMA CHOWLA, J.M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF THE CIT(A) DATED 31 ST OCTOBER 2013, RELATING TO THE ASSESSMENT YEAR 2007 -08, 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 U/S 80IB(10)(D) AS IT WAS WELL W ITHIN ITS KNOWLEDGE THAT THE PROJECT WAS NOT COMPLETED BY 31. 3.2008 AND THE PROJECT CONTAINED COMMERCIAL AREA MORE THAN 200 0 SQ.FT. AND THUS CONCEALED INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME. 2 BHUJBAL CONSTRUCTION COMPANY 3. 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 I.E., FROM THE COLLECTOR, PUNE, WHO HAD SANCTIONED THE REVISED LAYOUT AND BUILDING PLAN OF THE PROJECT AS PER EXPLANATION (II) TO SECTION 80IB(10)(A) OF THE ACT AND HAD THUS FURNISHED INACCURATE PARTICULARS OF ITS 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.2,64,16,577/- 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 11 TH NOVEMBER 2003. 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 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 IN COME. THE A.O. WAS OF THE VIEW THAT THE ASSESSEE HAD DELIBERATELY MADE THE SAID CLAIM AND, HENCE, HAD FURNISHED INACCURATE PARTICULARS 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 ELABORATE SUBM ISSIONS VIS- -VIS ITS CLAIM OF DEDUCTION U/S 80IB(10) OF THE AC T. IT WAS CONTENTION OF THE ASSESSEE THAT IT WAS ENTITLED TO PROPORTIONA TE DEDUCTION U/S 80IB(10) OF THE ACT AND CONSEQUENTLY NO PENALTY 271 (1)(C) WAS LEVIABLE. 3 BHUJBAL CONSTRUCTION COMPANY 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 COMMON ORDER 26 TH SEPTEMBER 2013, IN ITA NO.1486/PN/2009, 282/PN/2010 AND 620/PN/2012 FOR ASSESSMENT YEARS 20 06-07, 2007- 08 AND 2005-06. HE THUS DELETED THE PENALTY LEVIED U/S 271(1)(C) AS THE QUANTUM OF ADDITION / DISALLOWANCE IN RESPECT O F WHICH THE IMPUGNED PENALTY WAS IMPOSED HAD BEEN DELETED BY TH E TRIBUNAL IN ASSESSEES OWN CASE VIDE ORDER DATED 26 TH SEPTEMBER 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 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 4 BHUJBAL CONSTRUCTION COMPANY 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 11.02.2015 SD/ - (G.S. PANNU) ACCOUNTANT MEMBER SD/ - (SUSHMA CHOWLA) JUDICIAL MEMBER PUNE, DATED: 11 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