The ITO, Ward-9(2), Ahmedabad V. Mudra Builders, Ahmedabad

ITA 2409/AHD/2011

• Counselvise Citation: 240920514 RSA 2011
• Duration Of Justice: 3 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 19-03-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 23-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: ARTI N SHAH A R

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NO. 2409/AHD/2011 / ASSESSMENT YEAR: 2005-06 ITO, WARD-9(2), AHMEDABAD M/S. MUDRA BUILDERS, 9, VRUNDAVAN COLONY, B/H DEVAR TOWER, SHAHIBAUG DEAFNALA ROAD, AHMEDABAD PAN : AAHEM 4263 G / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI M.K. SINGH, SR. DR. ASSESSEE(S) BY : SMT ARTI N. SHAH, AR !' # $%&/ // / DATE OF HEARING : 19/03/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 19/03/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE REVENUE AND IS DIREC TED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX(APPEALS )-XV, AHMEDABAD DATED 29.07.2011 PERTAINING TO THE ASSESSMENT YEAR 2005-06. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE IS AGAINST THE DELETION OF PENALTY OF RS.38,00,000/- WHICH WAS LEV IED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSING OFF ICER LEVIED PENALTY U/S 271(1)(C) IN RESPECT OF TWO ADDITIONS, NAMELY, DISA LLOWANCE U/S 80IB(10) OF RS.84,92,482/- AND DISALLOWANCE U/S 40(A)(IA) OF RS .18,77,885/-. THE CIT(A) CANCELLED THE PENALTY WITH THE FOLLOWING FINDINGS:- ITA NO. 2409/AHD/2011 ITO VS. MUDRA BUILDERS FOR AY 2005-06 2 3. IT IS SEEN THAT THE APPELLANT MADE AVAILABLE AL L THE DETAILS TO THE DEPARTMENT DURING ASSESSMENT PROCEEDINGS AND THE CL AIM OF 80IB(10) WAS DENIED IN TOTO ON THE GROUND THAT PART OF THE RESID ENTIAL UNITS EXCEEDED 1500 SQ FEET LIMIT. THE BU PERMISSION DEPICTING THIS WAS MADE AVAILABLE TO THE AO BY THE APPELLANT ITSELF. HONBLE ITAT VIDE ORDER DA TED 15.07.2011 HAVE RESTORED THE QUANTUM ADDITION THAT IS REGULAR ASSES SMENT ORDER BACK TO THE FILE OF THE AO WITH THE DIRECTION TO ALLOW 80IB(10) DEDUCTION PROPORTIONATELY FOR THE FLATS CONSTRUCTED WITHIN THE PRESCRIBED LIM IT OF 1500 SQ. FT. THEREFORE, THE PENALTY IMPOSED ON 80IB(10) DISALLOWANCE DOES N OT REMAIN AS THE DISALLOWANCE ITSELF HAS BEEN RESTORED BACK TO THE F ILE OF THE AO. ADDITION U/S 40(A)(IA) WAS UPHELD BY THIS OFFICE BE CAUSE TDS WAS DEPOSITED LATE IN THE GOVERNMENT ACCOUNT THAT IS ON 01.06.200 6. THE APPELLANT DID NOT GO IN APPEAL TO HONBLE TRIBU NAL AGAINST THIS CONFIRMATION STILL IN MY VIEW REJECTION OF DEDUCTIO N ON ACCOUNT OF TECHNICAL BREACH OF LAW (LATE DEPOSIT OF TDS) DOES NOT WARRAN T IMPOSITION OF PENALTY U/S 271(1)(C), SPECIALLY WHEN JURISDICTIONAL TRIBUN AL HAS BEEN UPHOLDING DELETION OF PENALTY MADE ON ADDITION U/S. 40(A)(IA ). 4. THE REVENUE, AGGRIEVED WITH THE ORDER OF THE CIT (A), IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AND THE FACTS OF THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). SO FAR AS THE DISALLOWANCE U/S 80IB(10) IS CONCERNED, THE ITA T VIDE ORDER DATED 15.07.2011 HAVE SET ASIDE THE ADDITION AND RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. WHEN THE DISALLOWAN CE ITSELF HAS BEEN SET ASIDE, THE PENALTY BASED UPON SUCH DISALLOWANCE CAN NOT BE SUSTAINED AND THEREFORE, THE CIT(A) RIGHTLY DELETED THE SAME. WE MAY ONLY OBSERVE THAT IF AFTER COMPLETING SET ASIDE ASSESSMENT THE ASSESSING OFFICER AGAIN MAKES ADDITION, HE WILL BE AT LIBERTY TO REINITIATE THE P ENALTY PROCEEDINGS IN ACCORDANCE WITH LAW IF THE FACTS OF THE CASE SO WAR RANT. ITA NO. 2409/AHD/2011 ITO VS. MUDRA BUILDERS FOR AY 2005-06 3 6. SO FAR AS THE OTHER ADDITION IS CONCERNED, IT WA S A TECHNICAL DISALLOWANCE U/S 40(A)(IA) BECAUSE OF DELAY IN DEPO SIT OF TDS BY THE ASSESSEE. THERE IS NO DISPUTE THAT THE EXPENDITURE IN RESPECT OF THE DEDUCTION WAS CLAIMED, WAS INCURRED BY THE ASSESSE E AND THE SAME WAS FOR THE PURPOSE OF BUSINESS. MERELY BECAUSE THERE WAS DELAY IN DEPOSIT OF THE TDS AND AS PER PROVISIONS OF SECTION 40(A)(IA), DIS ALLOWANCE IS TO BE MADE IN THE YEAR UNDER APPEAL, IN OUR OPINION, IT CANNOT BE SAID THAT THE ASSESSEE CONCEALED THE INCOME OR FURNISHED INACCURATE PARTIC ULARS OF INCOME. WHILE TAKING THIS VIEW, WE DERIVE SUPPORT FROM THE DECISI ON OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT LTD , (2010) 322 ITR 158 (SC). IN VIEW OF THE ABOVE, WE RESPECTFULLY FO LLOWING THE DECISION OF HONBLE APEX COURT IN THE CASE OF RELIANCE PETROPRO DUCTS PVT LTD (SUPRA) UPHOLD THE ORDER OF CIT(A) AND DISMISS THE APPEAL F ILED BY THE REVENUE. 7. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON 19 TH MARCH, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER G.D. AGRAWAL VICE-PRESIDENT AHMEDABAD; DATED 19/03/2015 BIJU T., PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A) - XV , AHMEDABAD 5. +01 $ , , / DR, ITAT, AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD