The ACIT, 3(1), Indore V. M/s. SCC Projects Pvt. Ltd., Indore

ITA 444/IND/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2352 (ITAT-INDORE)
• Duration Of Justice: 4 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 13-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Keywords: Retrospective amendment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.444/IND/2013 ASSESSMENT YEAR: 2006-07 ACIT, 3 (1) INDORE, / VS. M/S. SCC PROJECT PVT. LTD., 206, MOURYA CENTRE, 16, RACE COURSE ROAD, INDORE ( REVENUE ) ( RESPONDENT ) P.A. NO. AABCM3529L REVENUE BY SHRI LAL CHAND, CIT - DR RESPONDENT BY SHRI SUMIT NEMA, SR. ADV. DATE OF HEARING: 10.01.2018 DATE OF PRONOUNCEMENT: 19.01.2018 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-I, INDORE, (IN SHORT CIT(A)), DATED 22.02.2013 PERTAINING TO THE A.Y. 2006-07. TH E REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN CANCELLING PENALTY IMPOSED U/S 271(1)( C) OF RS.1,58,64,985/- WITHOUT APPRECIATING THE FACT THAT ASSESSEE FURNISHED INACCURATE PARTICULARS OF INCOME BY WILLF ULLY CLAIMING DEDUCTION U/S 80IA, NOT ADMISSIBLE ON FACTS AND LAW . SCC PROJECTS PVT. LTD. 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.1,58,64,985 /- IMPOSED U/S 271(1)(C) WITHOUT APPRECIATING THE FACT THAT TH E DECISION OF APEX COURT IN RELIANCE PETROPRODUCTS LIMITED 322 IT R 128 IS NOT APPLICABLE BECAUSE ASSESSEE HAS FURNISHED INACCURAT E PARTICULARS BY CLAIMING THE DEDUCTION U/S 80IA. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS BY DELETING THE PENALTY SOLELY ON THE BASIS OF RETROSPECTIVE AMENDMENT OF SECTION 80IA BY VIRTUE OF FINANCE ACT 2007 WHEREAS THERE EXISTED THE FACTS UN EARTHED DURING ASSESSMENT PROCEEDINGS THAT ASSESSEE HAS FUR NISHED INACCURATE PARTICULARS WHILE CLAIMING THE DEDUCTION U/S 80IA. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN CANCELING THE PENALTY WITHOUT GRANTING OPPORTUNITY TO REVENUE DESPITE THE FACT THAT ASSESS ING OFFICER HAS GRANTED OPPORTUNITY TO ASSESSEE AND ASSESSEE DI D NOT FURNISH ANY REPLY DURING THE COURSE OF PENALTY PROC EEDINGS BEFORE THE AO. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY IMPOSED BY THE AO WITHOUT APPRECIATING THE FACTS THAT EVEN IF THE PREPOSITION OF RETROSPECTIVE AMENDMENT TO THE ACT IS ACCEPTED STIL L THE ASSESSEE WAS HAVING OPPORTUNITY TO EITHER REVISE TH E RETURN OR REVISE THE COMPUTATION BY ACCEPTING DURING SCRUTINY PROCEEDINGS OR BEFORE CIT(A) AND I.T.A.T. IN QUANTUM PROCEEDING S THAT THE DEDUCTION U/S 80IA WAS INCORRECTLY CLAIMED BUT ON T HE CONTRARY ASSESSEE ON MERITS KEPT ON CONTESTING THE REJECTION OF DEDUCTION U/S 80IA. 2 . BRIEFLY STATED FACTS ARE THAT WHILE FRAMING THE A SSESSMENT, ASSESSING OFFICER (IN SHORT AO) MADE DISALLOWANC E OF DEDUCTION U/S. 80IA AND INITIATED PENALTY U/S. 271(1)(C) IN R ESPECT OF QUANTUM ADDITION THE ISSUE IS PENDING AT ADMISSION STAGE BE FORE HON'BLE JURISDICTIONAL HIGH COURT. 3. ON FURTHER APPEAL THE LD. CIT(A), DELETED THE PE NALTY ON THE GROUND THAT WHEN THE RETURN WAS FILED NO AMENDMENT WAS MADE IN SCC PROJECTS PVT. LTD. 3 THE PROVISION AND THE ASSESSEE WAS ENTITLED FOR DED UCTION U/S 80IA. HENCE, THE ASSESSEE CANNOT BE HELD LIABLE TO FURNIS HING OF INACCURATE PARTICULARS. 4. AGGRIEVED BY THIS DELETION OF PENALTY, THE REVEN UE IS IN APPEAL. 5. THE LD. DR SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY, HE SUBMITTED THAT THE LAW CAM E INTO FORCE WHEN THE ASSESSMENT WAS BEING MADE. THE ASSESSEE DI D NOT REVISE ITS RETURN OF INCOME BY EXCLUDING CLAIM OF DEDUCTIO N U/S 80IA. THE LD. DR SUBMITTED THAT JUDGMENT OF HON'BLE SUPREME C OURT IN THE CASE OF RELIANCE PETROPRODUCTS LIMITED 322 ITR 128 IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE, THEN T HE LD. CIT(A) HAS WRONGLY APPLIED THE RATIO LAID BY THE HON'BLE SUPRE ME COURT. 6. PER CONTRA LD. SENIOR COUNSEL FOR THE ASSESSEE S UBMITTED THAT FIRSTLY, THE ASSESSEE HAS CHALLENGED BEING TREATED AS CONTRACTOR, THEREFORE, THE ASSESSEE IS CHALLENGING THE NON-AVAI LABILITY OF DEDUCTION U/S 80IA. SECONDLY, WHEN RETURN WAS FILED , THERE WAS NO SUCH PROVISION. IN EARLIER YEAR, THE REVENUE HAS AL LOWED THE CLAIM. HE SUBMITTED THAT THE ISSUE BEING DEBATABLE PENALTY CANNOT BE LEVIED. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT VS . VINOD KUMAR SHUKLA CONSTRUCTION PVT. LTD. INCOME TAX APPEAL NO. 29 OF 2016, WHERE THE VIEW OF THE TRIBUNAL WAS CONFIRMED THAT W HERE CLAIM MADE ERRONEOUSLY U/S 80IA UNDER THE ASSUMPTION THAT THEY ARE SCC PROJECTS PVT. LTD. 4 ENTITLED FOR DEDUCTION WOULD NOT ATTRACT THE PENALT Y U/S 271(1)(C) OF THE ACT. THERE IS NO DISPUTE WITH REGARD TO THE FAC T THAT AT THE TIME ON FILING OF RETURN, THE ASSESSEE WAS ENTITLED FOR CLAIM OF DEDUCTION U/S 80IA OF THE ACT. THE LAW WAS AMENDED SUBSEQUENT TO FILING OF ITR. THE CHANGE OF CONCEALMENT OF INCOME OR INACCUR ATE PARTICULARS OF INCOME CAN ONLY BE MADE WITH REGARD TO INCOME TA X RETURN AND THE LAW IN FORCE AT THAT POINT OF TIME. IN OUR VIEW THE ASSESSEE CANNOT BE HELD LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT. MOREOVER, THE ASSESSEE HAS CHALLENGED THE ENTITLEMENT OF DEDU CTION U/S 80IA. THE ISSUE IS PENDING BEFORE THE HON'BLE JURISDICTIO NAL HIGH COURT. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE IN THE FINDINGS OF THE LD. CIT(A), SAME IS HEREBY CONFIRMED. THUS, GRO UNDS RAISED BY THE REVENUE ARE DEVOID OF ANY MERIT, SAME ARE DISMI SSED. 8 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19 .01 .2018. SD/- (MANISH BORAD) SD/- (KUL BHARAT) CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 19 / 01/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE