Sankalp Construction Pune Pvt. Ltd., Pune V. Income-tax Officer,

ITA 420/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2685 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 05-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHESH D AKHADE
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Tax effect
• Section: 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO S . 420 TO 422 /PN/201 4 / ASSESSMENT YEAR S : 20 05 - 06 TO 2007 - 08 SANKALP CONSTRUCTION PUNE PVT. LTD., MZSK & ASSOCIATES, CHARTERED ACCOUNTANTS, LEVEL 3, BUSINESS BAY, PLOT NO.84, WELLESLEY ROAD, NEAR RTO, PUNE 41100 1 . / APPELLANT PAN: AAHCS9505J VS. THE INCOME TAX OFFICER, WARD 1(4), PUNE . / RESPONDENT / APPELLANT BY : SHRI NILESH KHANDELWAL / RESPONDENT BY : SHRI MAHESH D. AKHADE / DATE OF HEARING : 10 . 0 2 .201 6 / DATE OF PRONOUNCEMENT: 17 . 0 2 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH ESE THREE APPEALS FILED BY THE ASSESSEE ARE AGAINST CONSOLIDATED ORDER OF CIT (A) - I, PUNE DATED 31.12.201 3 RELATING TO ASSESSMENT YEAR S 2005 - 06 TO 2007 - 08 A GAINST PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT , 1961 (I N SHORT THE ACT) . 2. TH I S BUNCH OF PRESENT APPEALS RELATING TO THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER AS THE ISSUE RAISED IN ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 2 ALL THESE APPEALS WAS SIMILAR . WE PROCEED TO DECIDE THE PRESENT BUNCH OF APPEALS BY MAKING REFERENCE TO THE FACTS IN ITA NO. 420 /PN/2014. 3. THE ASSESSEE IN ITA NO. 420 /PN/2014 HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL: - 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS OF THE ACT IT BE HELD THAT, PENALTY LEVIED OF RS.1,23,986/ - U/S 271(1)(C) BY THE ASSESSING OFFICER AND CONFIRMED BY THE 1 ST APPELLATE AUTHORITY THE CASE OF THE APPE LLANT IS NOT COVERED BY PROVISIONS OF SEC. 271(1)(C) R.W. EXPLANATION - 1 OF THE ACT. IT FURTHER BE HELD THAT PENALTY IMPOSED BY THE AO AND CONFIRMED BY THE 1 ST APPELLATE AUTHORITY FOR ALLEGED FURNISHING OF INACCURATE PARTICULARS OF INCOME IS UNWARRANTED, U NJUSTIFIED & CONTRARY TO THE PROVISIONS OF SCHEME OF THE ACT. THE PENALTY IMPOSED BY THE AO BE DELETED. THE APPELLANT BE GRANTED JUST AND PROPER RELIEF IN THIS RESPECT. 2. THE APPELLANT PRAYS TO BE ALLOWED TO ADD, AMEND, MODIFY, RECTIFY, DELETE, RAISE A NY GROUNDS OF APPEAL AT THE TIME OF HEARING. 4. BRIEFLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE COMPANY WAS A BUILDER AND PROMOTER. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SHOWN PROFITS TO THE TUNE OF RS. 3,91,172/ - AFTER CLAIMING DE DUCTION UNDER SECTION 80IB(10) OF THE ACT. THE ASSESSEE HAD UNDERTAKEN THE PROJECT NAMED SANKALP NAGARI AT ACT. THE ASSESSEE HAD UNDERTAKEN THE PROJECT NAMED SANKALP NAGARI AT S.NO.82/272, DHANORI. THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. SURVEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED ON 27.07.2008 AT THE PREMISES OF THE ASSESSEE. THEREAFTER, THE ASSESSMENT WAS REOPENED UNDER SECTION 147 OF THE ACT AND NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED , I N REPLY TO WHICH, THE ASSESSEE F URNISHED RETURN OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER CALLED FOR VARIOUS DETAILS INCLUDING COPY OF SANCTIONED PLAN OF THE PROJECT, COMMENCEMENT CERTIFICATE AND COMPLETION CERTIFICATE, ETC. ON PERUSAL OF THE DOCUMENTS, THE ASSESSING OFFICER NO TED THAT THE LAYOUT OF THE PROJECT CALLED SANKALP NAGARI WAS ORIGINALLY APPROVED BY THE LOCAL AUTHORITY ON 27.03.2003, WHICH WAS REVISED ON 20.05.2004. THE PROJECT CONSISTED OF 13 BUILDINGS WITH TOTAL OF 206 FLATS, OUT OF WHICH 12 BUILDINGS CONSISTED OF 1 6 FLATS I.E. BUILDINGS A TO M AND BUILDING I CONSISTED OF 14 FLATS. THE ASSESSING OFFICER FURTHER NOTED THAT THE ASSESSEE HAD NOT RECEIVED THE ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 3 COMPLETION CERTIFICATE TILL DATE AND HENCE, THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS FOUND T O BE INCORRECT. ANOTHER OBSERVATION BY THE ASSESSING OFFICER WAS THAT IF THE DATE OF COMMENCEMENT OF ASSESSEES PROJECT WAS TAKEN TO BE 27.03.2003, THEN THE PROJECT WAS TO BE COMPLETED ON OR BEFORE 31.03.2008 , SO THE ASSESSEE WAS SHOW CAUSED AS TO WHY THE CLAIM MADE UNDER SECTION 80IB(10) OF THE ACT SHOULD NOT BE DISALLOWED. IN REPLY, THE ASSESSEE SUBMITTED THAT IT HAD APPLIED FOR COMPLETION CERTIFICATE WITHIN STIPULATED PERIOD I.E. ON 29.03.2008 . W HILE APPLYING FOR THE SAME, NO OBJECTION CERTIFICATES FR OM VARIOUS DEPARTMENTS LIKE DRAINAGE NOC, ROAD NOC AND FIRE NOC WERE ALSO ENCLOSED, BUT TILL DATE THE COMPLETION CERTIFICATE HAS NOT BEEN ISSUED. THE ASSESSING OFFICER WAS OF THE VIEW THAT WHERE THE COMPLETION CERTIFICATE HA D NOT BEEN ISSUED, THE PROJECT C OULD N OT BE SAID TO BE COMPLETE D AS ON 31.03.2008 . THE ASSESSING OFFICER THUS, HELD THAT THE ASSESSEE WAS NOT ELIGIBLE FOR CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT , HENCE, THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT AT RS. 4,13,286 / - WAS DISALLOWED. CONSEQUENTLY, PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED. CONSEQUENTLY, PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED. THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER DURING THE COURSE OF PENALTY PROCEEDINGS, DESPITE SEVERAL NOTICES ISSUED AND CONSEQUENTLY, THE ASSESSING OFFICER DECIDED THE PENALTY PROCEEDINGS EXPARTE THE ASSESSEE AND HELD THE ASSESSEE TO HAVE FURNISHED INACCURATE PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. THE ASSESSING OFFICER LEVIED PENALTY OF RS. 1,23 , 986/ - U NDER SECTION 271(1)(C) OF THE ACT. 5. BEFORE THE CIT(A), THE PLEA OF THE ASSESSEE WAS THAT IT HAD OBTAINED NOC FROM VARIOUS DEPARTMENTS LIKE DRAINAGE NOC, ROAD NOC, FIRE NOC, ETC. AND THE ARCHITECT HAD ALSO ISSUED THE COMPLETION CERTIFICATE AND APPLICAT ION WAS MOVED BEFORE THE PUNE MUNICIPAL CORPORATION (PMC) FOR ISSUE OF COMPLETION CERTIFICATE ON 29.03.2008 . HOWEVER, THE PMC HAD NOT ISSUED COMPLETION CERTIFICATE TO THE ASSESSEE AND THAT WAS ONLY THE REASON FOR DISALLOWANCE OF DEDUCTION CLAIMED UNDER ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 4 SE CTION 80IB(10) OF THE ACT. IT WAS THE CASE OF ASSESSEE BEFORE THE CIT(A) THAT THE ASSESSEE HAD FILED ALL THE REQUIRED DOCUMENTS TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT I.E. COMMENCEMENT CERTIFICATE, APPROVED LAYOUT PLAN, VARIOUS NOCS, COM PLETION CERTIFICATE ISSUED BY THE ARCHITECT AND FILED APPLICATION WITH PMC FOR ISSUE OF COMPLETION CERTIFICATE, FORM NO.10CCB OF THE AUDITOR AND ALL THE FACTS WERE DISCLOSED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THE ASSESSEE FURTHER CLAIMED THAT I T WAS OF THE BONAFIDE VIEW THAT IT WAS ENTITLED TO THE SAID CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AS THE CONDITION OF COMPLETION OF HOUSING PROJECT WAS NOT IN EXISTENCE AT THE TIME OF INITIAL APPROVAL I.E. 27.03.2003 AND THERE WAS NO REQUIRE MENT TO OBTAIN THE COMPLETION CERTIFICATE BEFORE 31.03.2008 . THE ASSESSEE FURTHER VEHEMENTLY CLAIMED THAT IT HAD COMPLETED THE CONSTRUCTION OF HOUSING PROJECT BEFORE THE STIPULATED DATE I.E. 31.03.2008 AND HAD ALSO FILED THE APPLICATION FOR ISSUE OF COMPL ETION CERTIFICATE ON 29.03.2008 AND IN VIEW OF VARIOUS DECISIONS OF HONBLE HIGH COURTS AND TRIBUNALS, THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS TO BE GRANTED TO THE ASSESSEE. HOWEVER, UNDER A MISTAKEN BELIEF , NO OF THE ACT WAS TO BE GRANTED TO THE ASSESSEE. HOWEVER, UNDER A MISTAKEN BELIEF , NO APPEAL WAS FILED AGAINST THE ORD ER OF ASSESSING OFFICER IN DENYING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. HOWEVER, WITH REGARD TO LEVY OF PENALTY, THE ASSESSEE CLAIMED THAT THERE IS NO MERIT IN LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. RELIANCE WAS PLACED ON THE FOL LOWING DECISIONS: - A. CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD., REPORTED IN 322 ITR 158 (SC) B. HINDUSTAN STEEL VS. STATE OF ORISSA REPORTED IN 83 ITR 26 C. ACIT VS. M/S. ROHAN ENGINEERING CONSTRUCTION IN ITA NO.867/PN/2011, RELATING TO ASSESSMENT YEA R 2006 - 07 ORDER DATED 19 .10. 2012 6. THE CIT(A) OBSERVED THAT IT WAS NOT IN DISPUTE THAT THE ASSESSEE HAD NOT RECEIVED THE COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY ON OR BEFORE 31.03.2008 AS REQUIRED UNDER CLAUSE (II) OF EXPLANATION READ WITH SUB - SE CTION (I) OF CLAUSE (A) OF SECTION 80IB(10) OF THE ACT. THE CIT(A) NOTED THAT THE AMENDMENT WAS BROUGHT IN STATUTE UNDER FINANCE (NO.2) ACT, 2004 EFFECTIVE FROM 01.04.2005 AND THOUGH THE COMMENCEMENT CERTIFICATE WAS OBTAINED ON 27.03.2003 WHEN THERE WAS N O ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 5 REQUIREMENT TO FURNISH THE COMPLETION CERTIFICATE, BUT BECAUSE OF THE AMENDMENT, THE SAID COMPLETION CERTIFICATE HAD TO BE FILED ON OR BEFORE 31.03.2008 . IN VIEW OF THE AMENDMENT BEING BROUGHT IN W.E.F. 01.04.2005, THE CIT(A) HELD THAT THERE WAS NO MERI T IN LEVY OF PENALTY FOR ASSESSMENT YEAR 2004 - 05 AS THE SAID YEAR WAS COMPLETED BEFORE THE AMENDMENT WAS BROUGHT INTO SECTION 80IB(10) OF THE ACT. HOWEVER, IN RESPECT OF BALANCE YEARS I.E. ASSESSMENT YEARS 2005 - 06 TO 2007 - 08 , THE CIT(A) OBSERVED THAT IN V IEW OF THE AMENDMENT W.E.F. 01.04.2005 , THE ASSESSEE WAS REQUIRED TO OBTAIN THE COMPLETION CER TIFICATE ON OR BEFORE 31.03.200 8 I.E. THREE YEARS FOR AVAILING THE DEDUCTION. HOWEVER, WHEN THE ASSESSEE FAILED TO FURNISH COMPLETION CERTIFICATE FOR THE PROJECT BEFORE THE ASSESSING OFFICER, MERELY BECAUSE THE ASSESSEE HAD FILED AN APPLICATION FOR OBTAINING COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY ON 29.03.2008 , BUT WHERE THE LOCAL AUTHORITY HAD NOT ISSUED THE CERTIFICATE TILL DATE OF THE ASSESSMENT ORDER, IT WAS A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT , WHERE THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME. THE CIT(A) ALSO OBSERVED THAT THIS WAS NOT A CASE WHERE THE DELAY IN OBTAINING THE COMPLETION ALSO OBSERVED THAT THIS WAS NOT A CASE WHERE THE DELAY IN OBTAINING THE COMPLETION CERTIFICATE WAS DUE TO REASONS BEYOND THE CONTROL OF THE ASSESSEE AND IN VIEW THEREOF, THE CIT(A) HELD THAT THE CASE OF THE ASSESSEE WAS CLEARLY COVERED UNDER THE MAIN PROVISIONS OF SECTION 271(1)(C) OF THE ACT. THE CIT(A) FURTHER OBSERVED THAT WHERE THE ASSESSEE MAKES CLAI M, WHICH WAS NOT ONLY INCORRECT IN LAW BUT WAS ALSO WITHOUT ANY BASIS AND WHERE THE EXPLANATION FURNISHED BY HIM FOR MAKING SUCH CLAIM WAS NOT FOUND TO BE BONAFIDE, IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN CIT VS. ZOOM COMMUNICATIO N (PVT.) LTD. REPORTED IN 327 ITR 510 (DEL) , THE EXPLANATION (1) TO SECTION 271(1)(C) OF THE ACT WAS ATTRACTED AND THE ASSESSEE WAS LIABLE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. ACCORDINGLY, PENALTY OF RS.1,23,986/ - WAS CONFIRMED FOR ASSE SSMENT YEAR 2005 - 06, RS.1,17,351/ - FOR ASSESSMENT YEAR 2006 - 07 AND RS.5,94,832/ - FOR ASSESSMENT YEAR 2007 - 08 . 7. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID CONSOLIDATED ORDER OF CIT(A) IN CONFIRMING LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE AC T. ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 6 8. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT FOR CLAIMING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, THOUGH THE PROJECT WAS NOT COMPLETED, SINCE THE ASSESSEE WAS FOLLOWING PERCENTAGE COMPLETION METHOD, IT WAS RECOGNIZ ING THE REVENUE ON SALE OF PART OF THE PROJECTS FROM YEAR TO YEAR AND HAD CLAIMED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AS IT HAD FULFILLED ALL THE CONDITIONS LAID DOWN THEREIN. OUR ATTENTION WAS DRAWN TO THE AUDIT REPORT FILED FOR THE RESPECTIV E YEARS IN FORM NO.10CCB AND IT WAS POINTED OUT THAT IN THE SAID AUDIT REPORT, THE DATE OF COMPLETION OF HOUSING PROJECT WAS SHOWN AS UNDER CONSTRUCTION. HE FURTHER POINTED OUT THAT THE SIZE OF THE PLOT WAS 6991.51 SQ. MTRS. AND THE BUILT UP AREA OF EACH OF THE RESIDENTIAL UNIT OF THE PROJECT WAS ABOUT 510 SQ. FT. SIMILAR DECLARATION WAS MADE IN FORM NO.10CCB IN ALL THE RESPECTIVE ASSESSMENT YEARS UNDER APPEAL. THEREAFTER, THE ASSESSEE ON 29.03.2008 FILED AN APPLICATION FOR ISSUE OF COMPLETION CERTIFICATE , WHICH FACT HAS BEEN NOTED BY THE ASSESSING OFFICER DURING THE COURSE OF PASSING ASSESSMENT ORDER. HOWEVER, IN VIEW OF NON - CLARITY ON THE ISSUE OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSEE ACCEPTED THE OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSEE ACCEPTED THE DISALLOWANCE MADE BY THE ASS ESSING OFFICER AND PAID TAXES DUE THEREON. IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT IN THE CIRCUMSTANCES, WHERE ALL THE FACTUAL MATERIAL WAS AVAILABLE BEFORE THE ASSESSING OFFICER AND IN VIEW OF CATENA OF JUDGMENTS IN ALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON PROPORTIONATE BASI S IN RESPECT OF COMPLETED UNITS, THOUGH THE ADDITION HAS BEEN CONFIRMED IN THE HANDS OF ASSESSEE, THERE WAS NO MERIT IN LEVY OF PENALTY FOR CONCEALMENT OF INCOME UND ER SECTION 271(1)(C) OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE CIT(A) HIMSELF HAD DROPPED THE PENALTY PROCEEDINGS FOR ASSESSMENT YEAR 2004 - 05 , HOWEVER, HAD CONFIRMED LEVY OF PENALTY FOR OTHER THREE RESPECTIVE YEARS. REFERENCE WAS MADE TO VARIOUS DECISIONS OF THE HONBLE HIGH COURTS AND PUNE BENCH OF TRIBUNAL FOR THE PROPOSITION THAT FOR SUCH IN - COMPLETED PROJECTS, THE ASSESSEE WAS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND IF SUCH ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 7 DEDUCTION HAD BEEN ALLOWED TO THE ASSESSEE, NO PENALTY FOR SAME COULD BE LEVIED UPON THE ASSESSEE. FURTHER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT EVEN IN THE CIRCUMSTANCES WHERE THE CLAIM OF DEDUCTION UNDER SECTION 80IB( 10) OF THE ACT HAS BEEN DENIED TO THE ASSESSEE, THERE IS NO MERIT IN LEVY OF PENALTY AS HELD BY PUNE BENCH OF TRIBUNAL IN ACIT VS. M/S. ROHAN ENGINEERING CONSTRUCTION IN ITA NO.867/PN/2011, RELATING TO ASSESSMENT YEAR 2006 - 07 ORDER DATED 19.10.2012 . 9. T HE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT UNDER THE INCOME - TAX ACT, DEDUCTION IS ALLOWABLE IF THE ASSESSEE FULFILS THE CONDITIONS LAID DOWN IN THE ACT . HOWEVER, PURSUANT TO SURVEY UNDER SECTION 133A OF THE ACT CONDUCTED AT TH E PREMISES OF THE ASSESSEE, IT CAME TO LIGHT THAT TILL 22.07.2008 , THERE WAS NO COMPLETION CERTIFICATE OBTAINED BY THE ASSESSEE. WHERE THE ASSESSEE HAD STARTED CONSTRUCTION ON 27.03.2003 AND HAD APPLIED FOR COMPLETION CERTIFICATE ON 29.03.2008 , THE LEARNE D DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ASSESSEE HAD NOT COMPLIED WITH THE CONDITIONS LAID DOWN IN SECTION 80IB(10) OF THE ACT AND IN SUCH CIRCUMSTANCES, THE ASSESSEE WAS NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB( 10) OF THE ACT. HE FURTHER RELIED ON THE ORDER OF CIT(A) WITH SPECIAL REFERENCE TO PARA 4.3.1 AT PAGE 7 OF THE APPELLATE ORDER. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEALS IS IN REL ATION TO LEVY OF PENALTY FOR CONCEALMENT OF INCOME UNDER SECTION 271(1)(C) OF THE ACT . THE AFORESAID PENALTY FOR CONCEALMENT IS LEVIABLE WHERE THE ASSESSEE HAS EITHER CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. BEFO RE LEVYING PENALTY UNDER THE SAID SUB - SECTION, FIRST FINDING HAS TO BE AGAINST THE ASSESSEE THAT IT HAD CONCEALED ITS INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF INCOME. ONE LIMB OF ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 8 SECTION 271(1)(C) OF THE ACT IS TO BE FULFILLED BEFORE THE ASSESSEE CAN BE HELD TO BE LIABLE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT . 11. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAD COMMENCED HOUSING PROJECT ON 27.03.2003 AND UNDER THE THEN PROVISIONS OF SECTION 80IB(10) OF THE ACT, THERE WAS NO REQ UIREMENT TO COMPLETE THE PROJECT WITHIN A TIME FRAME. THE ASSESSEE THEREAFTER, FOR THE YEAR S ENDING 31.03.2004 TO 31.03.2007 HAD CLAIMED THE SAID DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON SUCH PORTION OF BUILDINGS WHICH WERE COMPLETED BY IT FROM YEAR TO YEAR . ADMITTEDLY, THE BUILDINGS WERE UNDER CONSTRUCTION FOR ALL THESE YEARS. IN THE ORIGINAL RETURN OF INCOME FILED FOR ASSESSMENT YEARS 2004 - 05 TO 2007 - 08 , THE ASSESSEE HAD CLAIMED THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE FINANCE (NO.2) ACT, 2004 HAD INSERTED A CONDITION FOR OBTAINING COMPLETION CERTIFICATE. THIS AMENDMENT CAME INTO FORCE FROM 01.04.2005 AND AS THE BUILDING PLANS OF THE ASSESSEE WERE SANCTIONED BEFORE THAT DATE, PERIOD OF THREE YEARS WAS ALLOWED TO SUCH BUILDERS TO COMP LETE THE PROJECTS BY 31.03.2008 AND OBTAIN THE COMPLETION CERTIFICATE. THE ASSESSEE ADMITTEDLY, HAD COMPLETED THE CONSTRUCTION OF THE PROJECT BEFORE THE STIPULATED DATE AND HAD APPLIED FOR ISSUE OF COMPLETION CERTIFICATE BY THE PMC ON 29.03.2008. BEFORE OBTAINING THE COMPLETION CERTIFICATE FROM THE PMC, THE REQUIREMENT WAS TO OBTAIN NO OBJECTION CERTIFICATES FROM VARIOUS DEPARTMENTS, WHICH WERE DULY COMPLIED WITH BY THE ASSESSEE AND ALSO COMPLETION CERTIFICATE WAS ISSUED BY THE ARCHITECT CERTIFYING THAT T HE CONSTRUCTION OF BUILDING WAS COMPLETED. THERE ARE TWO ASPECTS TO THE ISSUE I.E. WHILE FILING THE RETURN OF INCOME FOR ASSESSMENT YEARS 2005 - 06 TO 2007 - 08 , THE ASSESSEE COULD NOT PRESUME OR COME TO A FINDING AS TO WHETHER IT WOULD COMPLETE THE PROJECT B Y 31.03.2008 OR NOT. THE ASSESSEE H AS SURE THAT IT WOULD COMPLY WITH ALL THE CONDITIONS AND AS PER THE REQUIREMENT OF ACT , IT HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT . F OR FOLLOWING THE PERCENTAGE COMPLETION METHOD I.E. ON THE FULLY CONSTR UCTED AREA FLATS, THE ASSESSEE WAS CLAIMING THE AFORESAID DEDUCTION FROM YEAR TO YEAR. WHEN THE ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 9 ASSESSEE ORIGINALLY MADE THE CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, THE ASSESSEE WAS HELD TO HAVE FULFILLED ALL THE CONDITIONS AND THE RETURN O F INCOME FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE ACT AND THE CLAIM OF THE ASSESSEE WAS ALLOWED. HOWEVER, PURSUANT TO SURVEY CONDUCTED AT THE PREMISES OF THE ASSESSEE UNDER SECTION 133A OF THE ACT ON 22.07.2008 , THE ASSESSING OFFICE R NOTED THAT THE ASSESSEE HAD NOT RECEIVED ANY COMPLETION CERTIFICATE FOR THE SAID PROJECT AND HENCE, THE RE - ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE ASSESSEE. IN THE SAID PROCEEDINGS OF RE - ASSESSMENT, THE ASSESSEE WAS DENIED THE CLAIM OF DEDUCTI ON UNDER SECTION 80IB(10) OF THE ACT ON THE PREMISE THAT THE ASSESSEE HAD NOT RECEIVED THE COMPLETION CERTIFICATE BY 31.03.2008 . THE ASSESSEE ACCEPTED THE ORDER OF ASSESSING OFFICER BECAUSE OF SMALL TAX EFFECT AND DID NOT FILE ANY APPEAL AGAINST THE SAID DENIAL OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE SETTLED PROPOSITION OF LAW ON THE AFORESAID ISSUE IS THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON COMPLETED PORTION OF BUILDING FROM YEAR TO YEAR, I F THE ASSESSEE FULFILLS THE REQUIREMENT OF COMPLETING THE BUILDING FROM YEAR TO YEAR, I F THE ASSESSEE FULFILLS THE REQUIREMENT OF COMPLETING THE BUILDING BY STIPULATED DATE I.E. 31.03.2008 . ADMITTEDLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAD COMPLETED THE BUILDING BEFORE 31.03.2008 AND EVEN APPLIED FOR COMPLETION CERTIFICATE ON 2 9.03.2008 AFTER RECEIVING THE REQUISITE NO OBJECTION CERTIFICATES FROM VARIOUS DEPARTMENTS AND ALSO THE COMPLETION CERTIFICATE ISSUED BY THE ARCHITECT. IN THE ABOVE SAID FACTS AND CIRCUMSTANCES, WHERE THE ASSESSEE HAS FURNISHED COMPLETE DETAILS IN RESPECT OF ITS CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND MERELY BECAUSE THE SAME WAS DENIED TO THE ASSESSEE ON SOME PREMISE, WHICH DOES NOT HOLD GOOD IN TODAYS SCENARIO OF SETTLED POSITION OF LAW. WE FURTHER FIND THAT SIM ILAR VIEW HAS BEEN TAKEN BY PUNE BENCH OF TRIBUNAL IN M/S. AUM HOUSING VS. ITO IN ITA NO.44/PN/2013, RELATING TO ASSESSMENT YEAR 2009 - 10, ORDER DATED 06.02.2015. WE FIND NO MERIT IN THE ORDER LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN THIS REGARD. WE FIND SUPPORT FROM THE RATIO LAID DOWN BY PUNE BENCH OF TRIBUNAL IN ACIT VS. M/S. ROHAN ENGINEERING CONSTRUCTION (SUPRA) AND ITO ITA NO S . 420 TO 422 /PN/20 1 4 SANKALP CONSTRUCTION PUNE PVT. LTD. 10 VS. SHRI SANJAY WALCHAND SANGHVI IN ITA NOS.695 TO 697/PN/2014, RELATING TO ASSESSMENT YEARS 2006 - 07 TO 2008 - 09, ORDER DATED 31.12.2015 . 12. T HE FACTS IN ACIT VS. M/S. ROHAN ENGINEERING CONSTRUCTION (SUPRA) ARE IDENTICAL TO THE FACTS BEFORE US, WHERE THE ASSESSEE WAS NOT ABLE TO OBTAIN THE COMPLETION CERTIFICATE BY THE APPOINTED DATE AND THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS DENIED AND IT WAS HELD BY THE TRIBUNAL THAT THE ASSESSEE IS NOT LIABLE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. FOLLOWING THE SAME PARITY OF REASONING, WE REVERSE THE ORDER OF CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE PENALTY UNDER SECTIO N 271(1)(C) OF THE ACT IN THE RESPECTIVE YEARS . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED IN ALL THE YEARS . 13 . IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THIS 17 TH DAY OF FEBRUARY , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 17 TH FEBR UARY , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPE LLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I, PUNE ; 4. / THE CIT - I, PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE