M/S SHIV OM DEVELOPERS P2, Mumbai V. ITO 15(3)(1), Mumbai

ITA 4080/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6862 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Wrong claim
• Section: 271(1)(c)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 4080/MUM/2019 (ASSESSMENT YEAR 2008-09) SHIVOM DEVELOPERS P2 D- 25, KAILASH VAIBHAV COMPLEX, PARK SITE VIKHROLI WEST MUMBAI-400 079. PAN : ABBFS0375A VS. ITO-15(3)(1) ROOM NO. 106 1 ST FLOOR TARDEO ROAD MATRU MANDIR MUMBAI-400 007. (APPELLANT) (RESPONDENT) ASSESSEE BY NONE DEPARTMENT BY SHRI T.S. KHALSA DATE OF HEARING 17 .0 2 .2021 DATE OF PRONOUNCEMENT 06.04.2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LEARNED CIT(A) DATED 29.3.2019 PERTAINS TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS OF APPEAL READ AS UNDER :- 1. THE LEARNED FIRST APPELLATE AUTHORITY CIT (A)-4 0,MUMBAI, SERIOUSLY ERRED IN LAW AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN MAKING THE FOLLOWING ARBITRARY ALLEGED PENALTIES U/S 271(1)(C) OF THE INCOME TAX ACT 1961 : (I) THE LEARNED CIT(A)-40 MUMBAI HAS DISMISSED THE APPEA L FILED AGAINST THE ORDER PASSED U/S 271(1)(C)BY ITO 15(3)(1) WITHOU T CONSIDERING ANY SUBMISSION AND DEMANDED PENALTY OF RS 11,35, 532/- U/S. 271(1)(C) OF THE INCOME TAX ACT 1961. (II) THE LEARNED CIT(A)-40 MUMBAI DISMISSED THE APPEAL W ITHOUT CONSIDERING THE FACT THAT THE ASSESSEE HAS SUBMITTED T HE CASE UNDER DRS SCHEME 2016 AND PAID THE FULL TAX DEMANDED AND 2 5% OF THE PENALTY AS PER THE SCHEME. 3. IN THIS CASE LEARNED CIT(A) HAS PASSED FOLLOWING ORDER :- IN THIS CASE, THE AO LEVIED PENALTY U/S. 271(L)(C) ON THE DISALLOWANCE OF DEDUCTION CLAIMED U/S. 80IB(10)(III) OF THE I.T. ACT. THE AO DISALLOWED THE SHIVOM DEVELOPERS P2 2 CLAIM OF 80IB(10(III) SINCE THE APPELLANT COULD NOT CO MPLETE THE PROJECT BY 31.3.2011 WITHIN 5 YEARS FROM YEAR END OF THE F.Y. IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. AS PER THE INSTRUCTION NO. 4 OF 2009 DATED 30.6.2009 ISSUED BY CBDT IN WHICH IT HAS BEEN STATED THAT IN CASE IT IS LATTER FOUND THAT THE CONDITION OF COMPLETING THE PROJECT WITHIN THE SPECIFIED TIME LIMIT OF 4 YEARS AS STATED IN SECTION 80 IB(10) OF THE ACT, HAS NOT BEEN SATISFIED, DEDUCTION GRANTED TO THE ASSESSEE U/S. 80IB(10) OF THE ACT IN EARLIER YEARS SHOULD BE WITHDRAWN. BASED ON THE RATIO HELD IN THE ORDER OF LUCKNOW ITAT IN THE CASE OF FORTUNA FOUNDATION ENGINEER AND CONSULTANT P. LTD VS. ACIT 54 SOT 99 (2012) LUCKNOW, WHEREIN THE HON'BLE ITAT CONFIRMED THE DISA LLOWANCE OF DEDUCTION U/S. 80IB(10) OF THE I.T. ACT, 1961 FOR THE REASON THA T THE PROJECT OF THE ASSESSEE WAS COMPLETED BEYOND 4 YEARS FROM THE END O F THE F.Y. IN WHICH THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. THE AO BASED ON THE ASSESSMENT ORDER LEVIED PENALTY U /S. 271(L)(C) RELYING ON THE HON'BLE APEX COURT DECISION IN THE CASE OF UNION O F INDIA AND OTHERS VS. DHARMENDRA TEXTILE PROCESSORS AND OTHERS, WHEREIN IT WAS HELD FOR LEVYING PENALTY MEN SREA ARE WILLFUL EVASION IS NOT AN ESSEN TIAL INGREDIENT FOR LEVY OF PENALTY AND IN THIS CASE, THE ASSESSEE HAS DELIBERAT ELY FILED INACCURATE PARTICULARS TO MAKE THE FALSE CLAIM AND J THEREFORE, W ITHIN THE MEANING OF EXPLANATION 1 TO SECTION 271(L)(C) OF THE I.T. ACT, AN A MOUNT OF RS. 36,74,858/- SO AS TO EVADE TAX, THE TAX SOUGHT TO BE EVAD ED WORKS OUT TO RS.11,35,532/- BEING THE PENALTY HAS BEEN LEVIED AND THE SAME IS HEREBY CONFIRMED, DISMISSING ALL THE GROUNDS OF APPEAL. THE AR FOR THE APPELLANT HAS FILED INTIMATION OF APPLIC ATION UNDER DRS SCHEME ON 30.12.2016 BY STATING THE APPELLANT HAD PAID TAX ARREARS ALONGWITH 25% OF THE PENALTY AMOUNT I.E. 11,35,532/- TOWARDS FULL AND FINAL SETTLEMENT OF TAX ARREARS AS DECLARED AND MENTIONED IN CERTIFICATE RECEIVED FROM PR. CIT-29 IN PRESCRIBED FORMAT FORM NO. 3 DT. 2.5.2017 UNDER DRS - 2016 FOR A.Y. 2008-09. HOWEVER, THE AO MAY CONSIDER AT THE TIME OF GIVING EFFECT TO THIS ORDER FOR THE CALCULATION OF TAX AND PEN ALTY AND ACCORDINGLY, VERIFY THE CONTENTIONS OF THE APPELLANT. HOWEVER, TH IS WILL NOT HAVE ANY BEARING ON THE DECISION GIVEN IN THE APPELLATE ORDER FOR THE YEAR UNDER CONSIDERATION. 3. IN THE RESULT, THE APPEAL FILED BY THE APP ELLANT IS DISMISSED. 4. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSED THE RECORD. NONE APPEARED ON BEHALF OF THE ASSESSEE DES PITE NOTICE. WE NOTE THAT IT IS ASSESSEES PLEA THAT IT HAS OPTED FOR DRS SCHEME 2016 AND PAID THE FULL TAX DEMANDED AND 25% OF THE PENALTY TOWARDS FULL AND FI NAL SETTLEMENT OF TAX ARREARS. THE LEARNED CIT(A) INSTEAD OF CONSIDERING THE IMPORT OF THIS SHIVOM DEVELOPERS P2 3 SUBMISSION HAS REMITTED THE ISSUE TO FILE OF ASSESS ING OFFICER. AS PER PRESENT SCHEME OF ACT. LEARNED CIT(A) CANNOT MAKE A REMAND TO THE ASSESSING OFFICER. 6. UPON CAREFUL CONSIDERATION WE REMIT THE MATTER T O LEARNED CIT(A). THE LEARNED CIT(A) SHALL EXAMINE THE SUBMISSION OF THE ASSESSEE AND PASS A SPEAKING ORDER AFTER GIVING THE ASSESSEE PROPER OPP ORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 6.4.2021. SD/- SD/- (AMARJIT SINGH) (SHAMIM Y AHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 6/4/2021 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// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI