DCIT 8(3), MUMBAI V. SHINGAR LTD, MUMBAI

ITA 4329/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2108 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 30-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K L KANAK
• Assessee Lawyers: M K BHATIA
• Keywords: Opportunity of being heard
• Section: 80IB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BE NCH, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER / I .T.A. NO. 4329/MUM/2013 ( / ASSESSMENT YEAR:2006-07 THE DCIT - 8(3), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. SHINGAR P. LTD., KALPATARU 71, NUTAN LAXMI SOCIETY, N.S. ROAD, NO. 9 JUHU SCHEME, VILE PARLE (W), MUMBAI-400 049 ./ ./ PAN/GIR NO. : AABCS 4563J ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI K.L. KANAK / RESPONDENT BY: SHRI M.K. BHATIA / DATE OF HEARING :29.09.2015 / DATE OF PRONOUNCEMENT :07.10.2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-18, MUMBAI DATED 26.3.2013 PERTAININ G TO ASSESSMENT YEAR 2006-07. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN DELETING THE PENALTY LEVIED U/S. 271(1)(C) OF TH E ACT. ITA. NO.4329/M/2013 2 3. THE ROOTS FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT LIE IN THE ASSESSMENT ORDER DATED 24.12.2008 MADE U/S. 143 (3) OF THE ACT. WHILE SCRUTINIZING THE RETURN OF INCOME, THE CLAIM OF DEDUCTION U/S. 80-IB WAS RE-WORKED BY THE AO BY REDUCING THE CLAIM OF DEDUCTION BY RS. 8,55,738/-. THE PENALTY PROCEEDINGS WERE INITI ATED TREATING THIS AS FURNISHING OF INACCURATE PARTICULARS OF INCOME A ND THE PENALTY WAS LEVIED AT RS. 22,50,716/-. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND WAS SUCCESSFUL IN GETTING THE RELIEF. 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 6. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE BROUGHT TO OUR NOTICE THE DECISION OF THE TRIBUNAL IN RESPECT OF THE QUANTUM ADDITION. IT IS THE SAY OF THE LD. COUNSEL THAT TH E ASSESSEE HAS SUCCEEDED IN THE QUANTUM PROCEEDINGS. 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO THE BENEFIT OF THE ORDER OF THE TRIBUNAL IN ITA NO. 7691/M/2010 DATED 5.8.2014. TH E TRIBUNAL HAS CONSIDERED THE ISSUE AT PARA-13 OF ITS ORDER WHICH READS AS UNDER: WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHOR ITIES BELOW. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. SINCE THE ASSESSEE IS MAINTAINING SEPARATE BOOKS OF ACCOU NT, WITHOUT POINTING OUT ANY DEFICIENCY IN THE BOOKS OF ACCOUNT SO MAINTAINED, THE AO CANNOT ALLOCATE THE EXPENDITURE ON THE BASIS OF THE TURNOVER. WE, ACCORDINGLY, DIRECT THE AO TO RECOMP UTE THE PROFIT OF NON ELIGIBLE AND ELIGIBLE UNIT WITHOUT ALLOCATIN G PROPORTIONATE EXPENDITURE AND ACCORDINGLY RECOMPUTE THE ELIGIBLE DEDUCTION U/S. ITA. NO.4329/M/2013 3 80IB AS PER THE PROVISIONS OF LAW AFTER GIVING REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS GR OUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. AS THE GRIEVANCE OF THE ASSESSEE HAS BEEN ALLOWE D BY THE TRIBUNAL, WE DO NOT FIND ANY MERIT IN THE LEVY OF P ENALTY. WE, THEREFORE CONFIRM THE FINDINGS OF THE LD. CIT(A). 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 7 TH OCTOBER, 2015 SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) $% /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; ( DATED 7 TH OCTOBER, 2015 . % . ./ RJ , SR. PS !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+, %%-. , -.! , / DR, ITAT, MUMBAI 6. ,/0 / GUARD FILE. / BY ORDER, * % //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI