ACIT CIR 3, THANE V. JOHAR HASAN ZOJWALLA, MUMBAI

ITA 3076/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62175 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 04-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 19-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBODH RATHAPARKHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI T R SOOD ,AM & SHRI VIJAY PAL RAO, J M ITA NO.3076/MUM/2011 (ASST YEAR 2005-06) THE ASST COMMR OF INCOME TAX CIRCLE 3, KALYAN (W), THANE VS JOHAR HASAN ZOJWALLA 1 ST FLOOR RANI MANSION MURBAD ROAD KALYAN(W) KALYAN (APPELLANT ) (RESPONDENT) PAN NO. AAAPZ5650K ASSESSEE BY SH SUBODH RATHAPARKHI REVENUE BY SH D S SUNDER SINGH DT.OF HEARING 4 TH APRIL 2012 DT OF PRONOUNCEMENT 11 TH APRIL2012 ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 14.1.2011 OF THE CIT(A) ARISING FROM THE PENALTY ORDER PASSED U /S 271(1)( C) OF THE I T ACT FOR THE AY 2005-06. 2 THE ASSESSING OFFICER LEVIED THE PENALTY U/S 271( 1)( C) OF THE ACT OF RS. 20,45,441/- AGAINST THE DISALLOWANCE OF CLAIM O F DEDUCTION U/S 80IB(10) RESULTING AN ADDITION OF RS. 59,75,060/-. THE ADDITION FOR D ISALLOWANCE OF DEDUCTION U/S 80IB(10) WAS DELETED BY THE TRIBUNAL IN QUANTUM APP EAL VIDE ORDER DATED 12.1.2011. SUBSEQUENTLY, THE CIT(A) HAS DELETED THE LEVY OF PE NALTY ON THE GROUND THAT THE TRIBUNAL HAS ALLOWED THE CLAIM OF DEDUCTION U/S 80I B(10). 3 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF T HE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. WHEN THE ADDITION MADE BY THE ASSESSING OFFICER BY DENYING THE DEDUCTION U/S 80IB(10) ON THE ENTIRE PROJECT HAS BEEN DELETED BY THE JOHAR HASAN ZOJWALLA ITA NO.3076/MUM/2011 (ASST YEAR 2005-06) 2 TRIBUNAL IN QUANTUM APPEAL BY HOLDING THAT THE ASSE SSEE IS ENTITLED FOR PROPORTIONATE DEDUCTION IN RESPECT OF RESIDENTIAL UNIT WHICH ARE WITHIN THE LIMIT OF 1500 SQ. FT AREA. WHEN THE BASIS ON WHICH THE PENALTY WAS LEVIED U/S 271(1)( C) IS NO MORE IN EXISTENCE IN VIEW OF THE ORDER OF THE TRIBUNAL IN Q UANTUM APPEAL, THEN THE PENALTY WOULD NOT SURVIVE. ACCORDINGLY, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN DELETING THE PENALTY LEVIED BY THE AO. 4 IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 11 TH , DAY OF APRIL 2012 SD/ SD/- ( T R SOOD ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 11 TH , APRIL 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI