ASST CIT CIR 2, THANE V. SALASAR DEVELOPERS, THANE

ITA 3602/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0552 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 25-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Assessee Lawyers: NIRAV VORA
• Keywords: Difference of opinion
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 3602/MUM/2016 ASSESSMENT YEAR: 2004 - 05 & ITA NO. 3603/MUM/2016 ASSESSMENT YEAR: 2005 - 06 & ITA NO. 3604/MUM/2016 ASSESSMENT YEAR: 2006 - 07 ACIT - 2 ROOM NO. 27 6 TH FLOOR, ASHAR IT PARK, B - WING, MIDC, WAGLE INDL. ESTATE THANE (W) - 400604 VS. M/S SALASAR DEVELOPERS GROUND FLOOR, VRINDAVAN SALASAR BRIJBHOOMI, TEMBA HOSPITAL ROAD, BHAYANDER (W), DIST. THANE - 401101 PAN NO. AAKFS6465R APPELLANT RESPONDENT REVENUE BY : MR. V. VIDHYADHAR, DR ASSESSEE BY : MR. NIRAV VORA , AR DATE OF HEARING : 25/01/2018 DATE OF PRONOUNCEMENT : 29/01/2018 ORDER PER N.K. PRADHAN, A.M. THE CAPTIONED APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 1 , THANE AND ARISE OUT OF THE PENALTY LEVIED BY THE ASSESSING OFFICER (AO) U/S 271(1)(C) OF THE INCOME TAX ACT 1961 (THE ACT). AS COMMON ISSUES ARE INVOLVED, WE ARE PROCEEDING TO DISPOSE THEM OFF THROUGH A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. SALASAR DEVELOPERS ITA NO. 3602 TO 3604/MUM/2016 2 2. THE GROUND RAISED BY THE REVENUE IN THESE APPEALS ARE AGAINST THE ORDER OF THE LD. CIT(A) DELETING THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE - FIRM, A BUILDER AND DEVELOPER , CLAIMED DEDUCTION U/S 80IB(10) DURING THE IMPUGNED ASSESSMENT YEARS. THE AO REJECTED THE CLAIM OF DEDUCTIO N MADE BY THE ASSESSEE BY CONCLUDING THAT THE STIPULATIONS CONTAINED IN SECTION 80IB(10) WERE NOT FULFILLED. THEN HE LEVIED PENALTY U/S 271(1)(C) ON THE ASSESSEE FOR WRONGLY CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). AFTER EXAMINING THE CASE, THE LD. CIT(A) HELD 10. FROM THE DETAILED FACTS DISCUSSED ABOVE, IT IS SEEN THAT THE APPELLANT HAD MADE A BONAFIDE CLAIM OF DEDUCTION U/S 80IB (10) OF THE I.T. ACT AND PARTIAL DISALLOWANCE OF THE SAME WAS MADE ON DIFFERENCE OF OPINION OR NON - FULFILLMENT OF THE PRESCRIBED CONDITION. SO LONG AS COMPLETE FACTS HAD BEEN DISCLOSED BY THE APPELLANT, IT CANNOT AMOUNT TO EITHER CONCEALMENT OF PARTICULARS OF INCOME FOR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. THEREFORE, FOLLOWING MY PREDECESSORS ORDER DATED 14.06.2012 AS REPRODUCED ABOVE AND RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS LTD. 32 2 ITR 158 (SC), IT IS HELD THAT THE PENALTY U/S 271(1)(C) OF THE I.T. ACT COULD NOT HAVE BEEN LEVIED IN THIS CASE. THEREFORE, PENALTY IMPOSED U/S 271(1)(C) OF THE I.T. ACT IN APPELLANTS CASE FOR ALL THE FOUR YEARS IS DIRECTED TO BE DELETED. 5. BEFORE U S, THE LD. DR RELIES ON THE ORDER PASSED BY THE AO. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESSEE RELIES ON THE ORDER PASSED BY THE LD. CIT(A) AND ALSO THE ORDER OF THE ITAT E BENCH MUMBAI IN ASSESSEES OWN CASE FOR THE AY 2004 - 05 TO 2006 - 07. SALASAR DEVELOPERS ITA NO. 3602 TO 3604/MUM/2016 3 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE FIND THAT IN THE QUANTUM ADDITION MADE BY THE AO IN THE CASE OF THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEARS, THE ITAT E BENCH, MUMBAI IN ITA NO. 4511 TO 4513/MUM/2014 H AS DISMISSED THE APPEAL FILED BY THE REVENUE. IT HAS BEEN HELD IN K.C. BUILDERS V. ACIT (2004) 265 ITR 562, 569 (SC) THAT WHEN AN ORDER OF ASSESSMENT ON THE BASIS OF WHICH PENALTY HAS BEEN LEVIED ON THE ASSESSEE HAS ITSELF BEEN FINALLY SET ASIDE OR CANCELL ED BY THE TRIBUNAL OR OTHERWISE, THE PENALTY CANNOT STAND BY ITSELF AND THE SAME IS LIABLE TO BE CANCELLED. IN VIEW OF THE ABOVE POSITION OF LAW, WE DISMISS THE APPEALS FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 29/01/2018. SD/ - SD/ - (D.T. GARASIA) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 29/01/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI