ITO WD 7(2)(3), MUMBAI V. MUKON CONSTRUCTION P.LTD, MUMBAI

ITA 3815/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0207 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 03-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Assessee Lawyers: MALVIKA BAJAJ

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA NO. 3815 /MUM./2016 ( ASSESSMENT YEAR : 20 07 08 ) INCOME TAX OFFICER WARD 7(2)(3), MUMBAI . APPELLANT V/S M/S. MUKON CONSTRUCTIONS PVT. LTD. 803, EMBASSY CENTRE, JAMNALAL BAJAJ MARG, NARIMAN POINT MUMBAI 400 021 AADCM1616L . RESPONDENT REVENUE BY : MS. POOJA SWAROOP ASSESSEE BY : MS. MALVIKA BAJAJ DATE OF HEARING 12 . 02 .2018 DATE OF ORDER 21.02.2018 O R D E R PER SAKTIJIT DEY, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER DATED 3 RD MARCH 2016, PASSED BY THE L EARNED COMMISSIONER (APPEALS) 21 , MUMB AI, FOR THE ASSESSMENT YEAR 2007 08 . 2 . BRIEF FACTS ARE, THE ASSESSEE A COMPANY IS ENGAGED IN THE BUSINESS OF DEVELOPMENT AND CONSTRUCTION. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 31 ST OCTOBER 2007, DECLARING NIL INCOME AFTER CLAIMING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE 2 M/S. MUKON CONSTRUCTIONS PVT. LTD. ASSESSING OFFICER WHILE EXAMINING ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) CALLED FOR VARIOUS DETAILS AND EXPLANATION OF THE ASSESSEE WITH REGARD TO VALIDITY OF DEDUCTION CLAIMED AND ULTIMA TELY HELD THAT ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) IS NOT ALLOWABLE. AS A RESULT OF DISALLOWANCE OF ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10), THE TOTAL INCOME WAS DETERMINED AT ` 4,71,15,700. ON THE BASIS OF THE DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 80IB(10), THE ASSESSING OFFICER INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND ULTIMATELY IMPOSED PENALTY UNDER THE SAID PROVISIONS ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER WAS CHALLENGED BY WAY OF AN APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS). 3 . THE LEARNED COMMISSIONER (APPEALS) NOTICING THAT SIMILAR DISALLOWANCE MADE IN ASSESSMENT YEAR 2004 05, THOUGH, ON DIFFERENT REASONING WAS SUBSEQUENTLY ALLOWED BY THE APPELLATE AUTHORITY DELETED THE PENALTY IMPOSED. 4 . AT THE VERY OUT SET, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED BEFORE US THAT WHILE DECIDING ASSESSEES QUANTUM APPEAL, THE TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO ALLOW ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. SHE, THEREFORE, 3 M/S. MUKON CONSTRUCTIONS PVT. LTD. SUBMITTED THAT IN VIEW OF THE AFORESAID FACTUAL POSITION, PENALTY UNDER SECTION 271(1)(C) CANNOT BE IM POSED. 5 . LEARNED DEPARTMENTAL REPRESENTATIVE HAS AGREED TO THE AFORESAID FACTUAL POSITION. 6 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL AVAILABLE ON RECORD. UNDISPUTEDLY, THE PENALTY UNDER SECTION 271(1)(C) HAS BEEN IMPOSED FOR THE IMPUGNED ASSESSM ENT YEAR PURELY ON THE BASIS OF ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10). HO WEVER, AS BROUGHT TO OUR NOTICE BY THE LEARNED AUTHORISED REPRESENTATIVE WHILE DECIDING ASSESSEES QUANTUM APPEAL FOR THE IM PUGNED ASSESSMENT YEAR, THE TRIBUNAL IN ITA NO.5538/MUM./2011 DATED 15 TH MARCH 2017, HAS DIRECTED THE ASSESSING OFFICER TO ALLOW ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB(10). THAT BEING THE CASE, WHEN THE ADDITION ON THE BASIS OF WHICH PENALTY UNDE R SECTION 271(1)(C) WAS IMPOSED HAS LOST ITS EXISTENCE PENALTY IMPOSED UNDER SECTION 271(1)(C) CANNOT SURVIVE. IN VIEW OF THE AFORESAID, WE UPHOLD THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) IN DELETING THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. GROUNDS RAISED ARE DISMISSED. 4 M/S. MUKON CONSTRUCTIONS PVT. LTD. 7 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.02.2018 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 21.02.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (ASSTT. REGISTRAR/SR.P.S) ITAT, MUMBAI 3