ITO 2(3)(2), MUMBAI V. S.B. ESTATE P.LTD, MUMBAI

ITA 4425/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2343 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 28-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Assessee Lawyers: KALPESH S TURALKAR
• Section: 115JB; 80IB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, JUDICIAL MEMBER / I .TA NO.4425/MUM/2012 ( / ASSESSMENT YEAR: 2008-09 THE ITO - 2(3)(2), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. S.B. ESTATE PVT. LTD., 4, BUONA CASA, 2 ND FLOOR, SIR, P.M. ROAD, FORT, MUMBAI-400 01 ./ ./ PAN/GIR NO. AAICS 0730J ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI R.K. SAHU / RESPONDENT BY: SHRI KALPESH S. TURALKAR / DATE OF HEARING :25.07.2016 ! / DATE OF PRONOUNCEMENT :29.07.2016 / O R D E R PER C.N. PRASAD, JM: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF THE LD. CIT(A)-6, MUMBAI DATED 23.4.2012 PERTAINING TO ASS ESSMENT YEAR 2008-09. 2. THE REVENUE IN ITS APPEAL CHALLENGES THE ORDER O F THE LD. CIT(A) IN DELETING THE PENALTY LEVIED U/S. 271(1)(C ) OF THE ACT. 3. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITS THAT PENALTY U/S. 271(1)(C) WAS LEVIED ON THE DISALLOWAN CE OF DEDUCTION ITA NO. 4425/M/2012 2 MADE U/S. 80IB OF THE ACT WHILE COMPUTING THE NORMA L PROVISIONS OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE INCOME COMPUTED UNDER NORMAL PROVISIONS OF THE ACT WAS LES S THAN THE INCOME COMPUTED U/S. 115JB OF THE ACT, THEREFORE, T AX WAS LEVIED ON THE BOOK PROFIT U/S. 115JB OF THE ACT. THE LD. COU NSEL FOR THE ASSESSEE REFERRING TO THE RECENT CIRCULAR OF THE BO ARD NO. 25 OF 2015 DATED 31 ST DECEMBER 2015 SUBMITS THAT WHERE THE ADDITIONS/ DISALLOWANCES WERE MADE UNDER NORMAL PROVISIONS OF THE ACT BUT TAX WAS LEVIED UNDER MAT, PROVISIONS U/S. 115JB/115JC F OR THE CASES PRIOR TO THE ASSESSMENT YEAR 2016-17, PENALTY U/S. 271(1)(C) IS NOT ATTRACTED WITH REFERENCE TO ADDITIONS/DISALLOWANCES MADE UNDER NORMAL PROVISIONS OF THE ACT. THEREFORE, IN ITS CA SE, SINCE PENALTY WAS LEVIED WITH REFERENCE TO ADDITIONS/DISALLOWANCES MA DE UNDER NORMAL PROVISIONS OF THE ACT I.E. DISALLOWANCE OF DEDUCTIO N U/S. 80IB AND TAXES WERE LEVIED ON THE BOOK PROFITS U/S. 115JB OF THE ACT, IN VIEW OF THE CBDT CIRCULAR, PENALTY U/S. 271(1)(C) IS NOT AT TRACTED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTS THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE PERUSED THE ORDERS THE CIRCULAR OF THE C BDT NO. 25 OF 2015 DATED 31 ST DECEMBER, 2015 WHEREIN IT IS CLARIFIED THAT PRIOR TO 1.4.2016 WHERE THE INCOME-TAX PAYABLE ON THE TOTAL INCOME AS COMPUTED UNDER THE NORMAL PROVISIONS OF THE ACT IS LESS THAN THE TAX PAYABLE ON THE BOOK PROFIT U/S. 115JB OF THE ACT, T HEN PENALTY U/S. 271(1)(C) OF THE ACT IS NOT ATTRACTED WITH REFERENC E TO ADDITIONS/DISALLOWANCES MADE UNDER NORMAL PROVISION S OF THE ACT. IT WAS ALSO DIRECTED ALL THE REVENUE AUTHORITIES HENCE FORTH NO APPEALS SHALL BE FILED ON THIS GROUND AND APPEALS ALREADY F ILED IF ANY ON THIS ITA NO. 4425/M/2012 3 ISSUE BEFORE VARIOUS COURTS/TRIBUNALS MAY BE WITHDR AWN/NOT PRESSED UPON. IN VIEW OF THE CIRCULAR OF THE CBDT REFERRED TO ABOVE, WE DISMISS THE APPEAL OF THE REVENUE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2016. SD/- SD/- (RAJENDRA) (C.N. PRASAD ) / ACCOUNTANT MEMBER $ % /JUDICIAL MEMBER MUMBAI; ( DATED 29 TH JULY, 2016 . % . ./ 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. , /01 / GUARD FILE. / BY ORDER, *% //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI