Raj Housing Development Pvt. Ltd., Ponda V. The Assistant Commissioner of Income Tax, Circle-2 (1), Panaji., Panaji

ITA 31/PAN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2096 (ITAT-PANAJI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 01-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH S MUTAGAR
• Assessee Lawyers: R K PIKALE
• Keywords: Revised return
• Section: 80IB; 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 31 /P A N/201 6 (ASST. YEAR : 200 6 - 0 7 ) RAJ HOUSING DEVELOPMENT PVT. LTD. , S - 1, PAI HOUSE, ABOVE HOTEL ATITHI , PONDA GOA. VS. ACIT, CIRCLE - 2(1), PANAJI GOA. PAN NO. AACCR 8639 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. PIKALE C A. DEPARTMENT BY : SHRI RAMESH S. MUTAGAR - DR DATE OF HEARING : 0 4 / 0 5 /201 6 . DATE OF PRONOUNCEMENT : 04 / 0 5 /201 6 . O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) , PANAJI - 2, IN APPEAL NO. 147/CIT(A) - 2/PNJ/2015 - 16 , DATED 2 1 /0 1 /201 6 FOR THE ASSESSMENT YEAR 2006 - 07 AGAINST THE CONFIRMATION OF PENALTY UNDER SEC. 271(1)(C) OF THE ACT. 2. SHRI R.K. PIKALE, CA REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI RAMESH S. MUTAGAR, DR REPRESENTED ON BEHALF OF THE REVENUE. 3 . IT WAS SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME ORIGINALLY ON 30/11/2016 , DECLARING A TOTAL INCOME OF 4,54,080/ - . IT WAS THE 2 ITA NO. 31 /P A N/201 6 SUBMISSION THAT THERE WAS A SURVEY ON THE PREMISES OF THE ASS ESSEE ON 09/08/2007. IT WAS THE SUBMISSION THAT SUBSEQUENTLY, THE ASSESSEE HAD FILED A REVISED RETURN ON 29/09/2007 , DECLARING A TOTAL INCOME OF 19,60,698/ - . IT WAS THE SUBMISSION THAT IN THE COURSE OF SURVEY, IT WAS NOTICED THAT THE ALLOCATION OF INTEREST INCOME HAD WRONGLY BEEN MADE TO THE PROJECT , WHICH HAD BEEN CLAIMING DEDUCTION UNDER SEC. 80IB . IT WAS THE SUBMISSION THAT IN THE REVISED RETURN, THIS MISTAKE HAD BEEN CORRECTED. IT WAS THE SUBMISSION THAT THE REVISED RETURN FILED BY THE ASSESSEE WAS WELL WITHIN TIME AND TH E ASSESSMENT HAS ALSO BEEN COMPLETED ON THE BASIS OF REVISED RETURN. IT WAS THE SUBMISSION TH A T THE ASSESSING OFFICER HAD LEVIED PENALTY ON THE GROUND THAT IN THE ORIGINAL RETURN , THERE WAS FURNISHING OF INACCURA TE PARTICULARS OF INCOME BY DIVERTING FUNDS PERTAINS TO 80IB PROJECT S TO NON 80IB PROJECTS . IT WAS THE SUBMISSION THAT THE ORIGINAL RETURN FILED BY THE ASSESSEE WAS NOT ACTED UPON AND IT WAS ONLY ON THE REVISED RETURN , WHICH HAD IN EFFECT EFFACED , T HE ORIGINAL RETURN ON WH I CH THE INTIMATION UNDER SEC. 143(1) HAD ALSO BEEN MADE AND THE ASSESSMENT HAD ALSO BEEN COMPLETED. IT WAS THE SUBMISSION THAT THE REVISED RETURN WAS ALSO THE RETURN UNDER SEC. 139(5) AND AS NO EVASION OF TAX HAD BEEN FOUND NOR THERE WERE FURNISHING INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME IN THE REVISED RETURN, P ENALTY WAS NOT LEVIABLE IN VIEW OF THE DECISION OF SURESH CHANDRA MITTAL [251 ITR 112 (SC)] . IT WAS THE SUBMISSION THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAD CONFIRMED THE LEVY OF PENALTY HOLDING THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULAR S OF INCOME. 4 . IN REPLY, DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDERS OF ASSESSING OFFICER AS WELL AS COMMISSIONER OF INCOME TAX (APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE FACTS OF THE PRESENT CASE CLEARLY SHOW S THAT THE ASSESSEE HAS FILED REVISED 3 ITA NO. 31 /P A N/201 6 RETURN , THOUGH , AFTER THE SURVEY AND THIS REVISED RETURN IS A VALID RETURN AND THE SAID RETURN HAS ALSO BEEN PROCESSED UNDER SEC. 143(1) AND THIS IS THE RETURN , WHICH HAS BE E N SELECTED FOR SCRUTINY AS PER CASS PROGRAMME. NO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME IN RESPECT OF THE RETURN , WHICH HAS BEEN CONSIDERED FOR THE PURPOSE OF ASSESSMENT , HAS BEEN POINTED OUT. ONCE REVISED RETURN IS FILED AND VALIDLY DONE AND THE SAME IS ALSO CONSIDERED FOR ASSESSMENT, IT EFFECTIVELY EFFACED THE ORIGINAL RETURN FILED. IN THESE CIRCUMSTANCES , IN VIEW OF THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF SURESH CHANDRA MITTAL (SUPRA) , WE ARE OF THE VIEW THAT NO PENALTY IS LEVIABLE IN THE PRESENT CASE AND , CONSEQUENTLY , DELETE THE SAME. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON WEDNESDAY , THE 0 4 TH DAY OF MAY , 201 6 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 4 TH MAY , 201 6 . VR/ - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI