The DCIT, Circle-5, Baroda V. M/s. Anant Developers, Baroda

ITA 403/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9166 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 20-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 12-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: M K PATEL
• Section: 143(3); 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA.NO.403/AHD/2013 / ASSTT. YEAR: 2007-2008 DCIT, CIR.5 RACE COURSE CIRCLE BAROD. VS. M/S.ANANT DEVELOPERS C/O. TEJAS C. BHAVSAR 9, SHIV BUNGALOW SOCIETY OPP: PRAGATINAGAR SOCIETY KHODIYA CHAR RASTA NEW VIP RING ROAD KARELIBAUG, BARODA PAN : AAHFA 6752 C ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI OM PRAKASH MEENA, SR.DR ASSESSEE BY : SHRI M.K. PATEL, AR / DATE OF HEARING : 20/02/2017 / DATE OF PRONOUNCEMENT: 20 /02/2017 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST OR DER OF THE LD.CIT(A)-V, BARODA DATED 5.11.2012 PASSED FOR THE ASSTT.YEAR 2008-08. 2. GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT(A) E RRED IN DELETING THE PENALTY OF RS.11,67,030/- IMPOSED BY THE AO UNDER S ECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. ITA NO.403/AHD/2013 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED ITS RETURN OF INCOME ON 28.10.2007 DECLARING NIL AFTER CLAIMING DEDUCTIO N OF RS.34,67,092/- UNDER SECTION 80IB(10) OF THE INCOME-TAX ACT, 1961. ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS MADE AT RS.34,67,092/ - BY DISALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80IB OF THE ACT. ADDITION WAS CONFIRMED BY THE CIT(A). THE AO INITIATED PENALTY PROCEEDINGS U NDER SECTION 271(1)(C) AND IMPOSED PENALTY OF RS.11,67,030/-. HOWEVER, ON APPEAL, LD.CIT(A) HAS DELETED THE PENALTY. 4. AT THE VERY OUTSET, THE LD.COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE LD.AO HAS VISITED THE ASSESSEE WITH PENALTY UNDER S ECTION 271(1)(C) ON ADDITION AMOUNTING TO RS.34,67,092/- WHICH WAS ADDE D BY DISALLOWING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THIS DISALLOWANCE WAS CHALLENGED IN QUANTUM APPEAL BEFORE THE TRIBUNAL IN ITA NO.2062/AHD/2010. THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE FILE OF THE AO VIDE ORDER DATED 31.10.2012. A COPY OF THIS ORDER OF THE TRIBUNAL I S PLACED ON RECORD. THE AO HAS PASSED A FRESH ASSESSMENT ORDER AND ISSUED A DE MAND NOTICE UNDER SECTION 156 OF THE INCOME TAX ACT ON 28.2.2014. THE AO DID NOT MAKE ADDITION UNDER SECTION 80IB(10) OF THE ACT IN FRESH ASSESSME NT ORDER PASSED IN PURSUANCE OF THE ABOVE ITATS ORDER. THEREFORE, AC CORDING TO THE LD.COUNSEL FOR THE ASSESSEE NO PENALTY IS IMPOSABLE UPON THE A SSESSEE. THE LD.DR, ON THE OTHER HAND, WAS UNABLE TO CONTROVERT THIS CONTENTIO N OF THE LD.COUNSEL FOR THE ASSESSEE. 5. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. WE FIND THAT S UB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEM PLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, ITA NO.403/AHD/2013 3 PAYABLE HIM, WHICH SHALL NOT BE LESS THAN , BUT WHI CH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED B Y REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDED UPON THE ADDITION MADE TO THE INCOME OF THE ASSESSE E. SINCE BASIS FOR VISITING THE ASSESSEE WITH PENALTY HAS BEEN EXTINGU ISHED BY NOT MAKING ANY ADDITION BY THE AO IN THE FRESH ASSESSMENT PURSUANT TO THE ORDER OF THE ITAT DATED 31.10.2012 (SUPRA), THEREFORE, THE IMPUGNED P ENALTY IS NON EST IN THE PRESENT CASE, AND ACCORDINGLY, WE DO NOT FIND ANY M ERIT IN THIS APPEAL. APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 20 TH FEBRUARY, 2017 AT AHMEDABAD. SD/- SD/- ( AMARJIT SINGH ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER