M/s. Swami Developers, Baroda V. The Income tax Officer,Ward-2(5), Baroda

ITA 3059/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9353 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 05-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K
• Assessee Lawyers: M J SHAH
• Keywords: Wrong claim

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.3059/AHD/2011 ( / ASSESSMENT YEAR : 2005-06) M/S.SWAMI DEVELOPERS NEAR AIR FORCE STATION MAKARPURA, BARODA / VS. THE ITO WARD-2(5) BARODA ./ ./ PAN/GIR NO. : ABAFS 9472 P ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI M.J. SHAH, AR #' % $ / RESPONDENT BY : SHRI A.K. PANDEY, SR.DR &'( % ) / DATE OF HEARING 24/02/2016 *+, % ) / DATE OF PRONOUNCEMENT 29/02/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-V, BARODA [CIT(A) IN SHORT] DATED 22.09.2011 PERTAINING TO ASSESSMENT Y EAR (AY) 2005-06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- THE FOLLOWING GROUNDS ARE WITHOUT PREJUDICE TO EA CH OTHER- ITA NO.3059/AHD /2011 M/S. SWAMI DEVELOPERS VS. ITO ASST.YEAR 2005-06 - 2 - 1. THE LD.CIT(APPEALS)-IV BARODA HAS WRONGLY UP HELD THE PENALTY U/S.271(1)(C) OF THE ACT 1961 OF RS.58,995/ - AT 100% LEVIED BY THE LEARNED ASSESSING OFFICER. 2. YOUR APPELLANT CRAVES, LEAVE, TO ADD AND OR ALTER O R MODIFY THE ABOVE GROUNDS ON OR BEFORE THE DATE OF FINAL HEARIN G. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 28/09/2007. WHILE FRAMING THE ASSESSMENT, TH E ASSESSING OFFICER (AO) ALSO INITIATED PENALTY PROCEEDINGS ON THE AMOU NT CLAIMED AS DEDUCTION U/S.80IB OF THE ACT. SUBSEQUENTLY, THE A O IMPOSED PENALTY U/S.271(1)(C) OF THE ACT. THE ASSESSEE BEING AGGRI EVED BY THE ASSESSMENT ORDER, PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WH O AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DISMISSED THE APPEA L. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE ASSESSEE IS FURTHER IN APPEAL BEFORE US. 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THE FACT THAT THIS IS NOT THE CASE WHERE THE PENALTY IS TO BE IMPOSED. HE PLACED RELIANCE ON TH E JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT.LTD. REPORTED AT (2010) 322 ITR 0 158 (SC). HE SUBMITTED THAT THERE IS NO DISPUTE WITH REGARD TO T HE FACT THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S.80IB OF THE ACT BUT WHEN REALIZED SUCH DEDUCTION DURING THE COURSE OF ASSESSMENT PROCEEDIN GS, HE HAD ITA NO.3059/AHD /2011 M/S. SWAMI DEVELOPERS VS. ITO ASST.YEAR 2005-06 - 3 - WITHDRAWN THE CLAIM OF DEDUCTION. UNDER THESE FACT S, THE AUTHORITIES HAVE NOT JUSTIFIED IN IMPOSING THE PENALTY AND CONFIRMIN G THE SAME. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT IT WAS UPON THE REVENUES DETECTION THAT THE ASSESSEE HAS CLAIMED A WRONG DEDUCTION U/S.80IB OF THE ACT AND THE ASSESSEE HAD OFFERED THE SAME FOR TAX. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE WITH REGARD TO THE POSITION OF LAW THAT THE QUANTUM PROCEEDINGS AND THE PENALTY PROCEEDINGS ARE TWO DIF FERENT AND DISTINCT PROCEEDINGS. MERELY ON WRONG CLAIM OF DEDUCTION MA DE BY THE ASSESSEE IN THE RETURN OF INCOME, WOULD NOT MAKE THE ASSESS EE LIABLE FOR PENALTY. THERE SHOULD BE SOME EVIDENCE ON RECORD FOR SUCH WR ONG CLAIM WITH A VIEW TO FURNISH INACCURATE PARTICULARS OF INCOME OR TO CONCEAL THE PARTICULARS OF INCOME. IF THE ISSUE IS DEBATABLE A ND THE ASSESSEE IS ON THE OPINION THAT HE IS ENTITLED TO SUCH CLAIM, IN THAT EVENT, PROVISIONS OF SECTION 271(1)(C) WOULD NOT BE ATTRACTED. IN THE I NSTANT CASE, THE ASSESSEE HAD A WRONG ASSUMPTION OF LAW AND CLAIMED A DEDUCTI ON WHICH WAS SUBSEQUENTLY WITHDRAWN BY HIM. THE HONBLE APEX CO URT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT.LTD. REPORTED AT (2010) 322 ITR 0158 (SC) HAS HELD AS UNDER:- ITA NO.3059/AHD /2011 M/S. SWAMI DEVELOPERS VS. ITO ASST.YEAR 2005-06 - 4 - 9. WE ARE NOT CONCERNED IN THE PRESENT CASE WITH THE MENS REA. HOWEVER, WE HAVE TO ONLY SEE AS TO WHETHER IN THIS CASE, AS A MATTER OF FACT, THE ASSESSEE HAS GIVEN INACCURATE PARTICULARS. IN WEBSTER'S DICTIONARY, TH E WORD 'INACCURATE' HAS BEEN DEFINED AS : 'NOT ACCURATE, NOT EXACT OR CORRECT; NOT ACCORDING TO TRUTH; ERRONEOUS; AS AN INACCURATE STATEMENT, COPY OR TRANSCRIPT.' WE HAVE ALREADY SEEN THE MEANING OF THE WORD 'PARTI CULARS' IN THE EARLIER PART OF THIS JUDGMENT. READING THE WORDS IN CONJUNCTION, TH EY MUST MEAN THE DETAILS SUPPLIED IN THE RETURN, WHICH ARE NOT ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TRUTH OR ERRONEOUS. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE, THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. SUCH NOT BEING THE CASE, THERE WOULD BE N O QUESTION OF INVITING THE PENALTY UNDER S. 271(1)(C) OF THE ACT. A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACC URATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETU RN CANNOT AMOUNT TO THE INACCURATE PARTICULARS. 4.1. THEREFORE, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT.LTD.(SUPRA), ASSESSEES GROUND OF APPEAL IS HER EBY ALLOWED. ACCORDINGLY, THE AO IS DIRECTED TO DELETE THE PENAL TY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 29 TH DAY OF FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 29/ 02 /2016 0)..& , '.&../ T.C. NAIR, SR. PS ITA NO.3059/AHD /2011 M/S. SWAMI DEVELOPERS VS. ITO ASST.YEAR 2005-06 - 5 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-V, BARODA 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 25.2.16 (DICTATION-PAD 6+P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..29.2.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.29.2.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29.2.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER