HAWARE ENGINEERS & BUILDERS P. LTD, NAVI MUMBAI V. ASST CIT CEN CIR 29, MUMBAI

ITA 4784/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5126 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 12-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 19-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: S K MUTSADDI; RUTURAJ HARIVIJAY GURJAR
• Section: 92

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL H HH H BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . . . !' !' !' !' , # # # # $% $% $% $% BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA, AM , AM , AM , AM ./ I.T.A I.T.A I.T.A I.T.A. NO. . NO. . NO. . NO.4784/MUM/2012 4784/MUM/2012 4784/MUM/2012 4784/MUM/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR :2006-07) HAWARE ENGINEERS & BUILDERS PVT. LTD., 413/416, VARDHAMAN MARKET, SECTOR- 17, DBC, VASHI, NAVI MUMBAI-400705 / VS. ACIT-CC-29, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 ( () / APPELL APPELL APPELL APPELLANT ANT ANT ANT) .. ( *+() / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.5052/MUM/2012 5052/MUM/2012 5052/MUM/2012 5052/MUM/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR :2006-07) ACIT-CC-29, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 / VS. HAWARE ENGINEERS & BUILDERS PVT. LTD., 413/416, VARDHAMAN MARKET, SECTOR-17, DBC, VASHI, NAVI MUMBAI-400705 %( # ./ , ./ PAN/GIR NO. :AAACH2577C ( () / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+() / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) & && & -. -. -. -. 0 1 0 1 0 1 0 1 /ASSESSEE BY : SHRI S. K. MUTSADDI & SHRI RUTURAJ HARIVIJAY GURJAR % % % % 0 1 0 1 0 1 0 1 / REVENUE BY : SHRI PITAMBAR DAS 0 00 0 .# .# .# .# / DATE OF HEARING : 12 TH NOVEMBER 2013 23' 23' 23' 23' 0 00 0.# .# .# .# /DATE OF PRONOUNCEMENT: 20 TH NOVEMBER 2013 $4 / O R D E R PER : , . . / VIJAY PAL RAO, JM THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 2.5.2012 OF COMMISSIONER OF INCOME TAX(APPEALS) ARISING FROM PENALTY ORDER U/S 271(1)(C) OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE IS A COMPANY AND IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND CONSTRUCTION. FOR THE ASSESSMENT YE AR UNDER ITA NO.4784 & 5052/M/2012 HAWARE ENGINEERS & BUILDERS PVT. LTD. 2 CONSIDERATION THE ASSESSEE CLAIMED DEDUCTION U/S 80 IB(10) OF THE INCOME TAX ACT IN RESPECT OF 7 PROJECTS NAMELY AS UNDER: I. SHANTINIKETAN, PLOT NO. 8A, SECTOR-8, KHARGHAR II. BALAJI TOWER, PLOT NOS. 29-32, 36 & 37, SECTOR-30, VASHI III. SILICON TOWER, SANPADA, VASHI 46C/30A IV. KAVERI, PLOT NO. 4, SECTOR -5, KHARGHAR V. PANCHAVATI, PLOT NOS. 92 TO 96, SECTOR-5, GHANSOLI VI. VRINDAVAN, PLOT NO. 52, SECTOR-9, PANVEL VII. TULSI, PLOT NO. 52, SECTOR-9, PANVEL 3. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DE DUCTION U/S 80IB(10) IN RESPECT OF ALL ABOVE SEVEN PROJECTS. ON APPEAL, THE CIT(A) UPHELD THE ORDER OF THE ASSESSING OFFICER IN DISALLOWING THE D EDUCTION U/S 80IB(10). THE ASSESSEE CARRIED THE MATTER TO THIS TRIBUNAL BY FILING AN APPEAL. THIS TRIBUNAL VIDE ITS COMPOSITE ORDER DATED 4.5.2012 FO R THE ASSESSMENT YEARS 2005-06 AND 2006-07 ALLOWED THE ASSESSEES CLAIM FO R DEDUCTION U/S 80IB(10) FOR 6 PROJECTS. THE CLAIM OF DEDUCTION U/S 80IB(10) IN RESPECT OF THE PROJECT SHANTINIKETAN WAS REJECTED BECAUSE THE ASSESSEE WITHDRAWN THE CLAIM BEFORE THE TRIBUNAL. IN THE MEAN TIME THE A.O INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) AND LEVIED A PENA LTY OF ` 1,61,14,485/- BEING 100% OF THE TAX EVADED IN RESPECT OF ALL SEVE N PROJECTS. THE ASSESSEE CHALLENGED THE ACTION OF THE A.O FOR LEVY THE PENALTY BEFORE THE CIT(A). THE CIT(A) GIVE PARTIAL RELIEF TO THE ASSES SEE IN RESPECT OF THE PROJECT PANCHVATI, VRINDAVAN AND TULSI. AGGRIEVED B Y THE ORDER OF THE CIT(A), BOTH THE ASSESSEE AS WELL AS REVENUE FILED THE RESPECTIVE APPEALS BEFORE US. ITA NO.4784 & 5052/M/2012 HAWARE ENGINEERS & BUILDERS PVT. LTD. 3 4. THE ASSESSEE HAS RAISED THE ONLY GROUND IN THIS APPEAL AS UNDER: ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERR ED IN CONFIRMING THE CONCEALMENT PENALTY LEVIED U/S 271(1 )(C) OF THE INCOME TAX ACT IN RESPECT OF THE DEDUCTION CLAIMED U/S 80IB(10) OF THE INCOME TAX ACT FOR THE PROJECT SHANTI NIKETA N. THE PENALTY CONFIRMED BY THE CIT(A) IN RESPECT OF THE DEDUCTION FOR THIS PROJECT IS ` 7,17,990/-. THE PENALTY SO CONFIRMED S HOULD BE CANCELLED. 5. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY L EVIED U/S 271(1)(C) IN RESPECT OF PROJECT PANCHVATI, VRINDAVA N AND TULSI HOLDING THE SAME AS BASED ON DISPUTABLE LEGAL ISSUE . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE A.O TO RECOMP UTED THE PENALTY U/S 271(1)(C) BY EXCLUDING TAX AVOIDANCE IN RESPECT OF PROJECT PANCHVATI, VRINDAVAN AND TULSI. 6. WE HAVE HEARD THE LD. A.R AS WELL AS THE LD. D.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET THE LD. A.R HAS POINTED OUT THAT EXCEPT THE PROJECT SHANTINIKETAN, THE CLAIM OF DEDU CTION U/S 80IB(10) HAS BEEN ALLOWED BY THE TRIBUNAL FOR THE REST OF SIX PR OJECTS THEREFORE, THE APPEAL OF THE REVENUE DOES NOT SURVIVE IN VIEW OF T HE DECISION OF THE TRIBUNAL WHEREBY THE CLAIM HAS BEEN ALLOWED. AS REG ARDS THE PENALTY IN RESPECT OF THE PROJECT SHANTINIKETAN, THE LD. A.R O F THE ASSESSEE HAS SUBMITTED THAT FOR THE ASSESSMENT YEAR 2004-05 THE TRIBUNAL HAD ALLOWED THE CLAIM OF THE ASSESSEE VIDE ORDER DATED 30.3.201 1. THEREFORE, DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IB(10) IN RESPECT OF SHANTINIKETAN PROJECT WOULD NOT AMOUNT TO CONCEALMENT OF INCOME O R FURNISHED INACCURATE PARTICULARS OF INCOME. HE HAS FURTHER SU BMITTED THAT AN ITA NO.4784 & 5052/M/2012 HAWARE ENGINEERS & BUILDERS PVT. LTD. 4 IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IS ASSESSEES CASE IN RESPECT OF PENALTY U/S 271(1)(C) FOR THE ASSESSMENT YEAR 2005-06 VIDE ORDER DATED 1.11.2012 IN ITA NO. 7125 & 7144/M/2011 . 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS CAREFUL PERUSAL OF THE RELEVANT RECORD WE NOTE THAT SO FAR AS THE REVE NUES APPEAL IS CONCERN WHEN THE QUANTUM APPEAL HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE WHEREBY THE CLAIM OF DEDUCTION U/S 80IB(10) HAS BEE N ALLOWED IN RESPECT OF ALL PROJECTS EXCEPT SHANTINIKETAN THEN THE PENAL TY IN RESPECT OF SIX PROJECTS WOULD NOT SURVIVE. ACCORDINGLY, THE APPEAL OF THE REVENUE BECOMES INFRUCTUOUS AND HENCE DISMISSED. AS REGARDS THE ASSESSEES APPEAL REGARDING LEVY OF PENALTY U/S 271(1)(C) IN R ESPECT OF SHANTINIKETAN PROJECT, WE NOTE THAT FOR THE ASSESSMENT YEAR 2004- 05 THE TRIBUNAL HAD ALLOWED THE CLAIM OF THE ASSESSEE IN RESPECT OF THI S PROJECT AND PARTICULARLY ON THE ISSUE OF SIZE/AREA OF PLOT AFTE R CONSIDERING THE ADDITIONAL LAND ALLOTTED BY THE CIDCO TO THE ASSESS EE. WE FURTHER NOTE THAT THIS ISSUE HAS BEEN CONSIDERED AND DECIDED BY THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 . THE CONCLUSION ARRIVED BY THE TRIBUNAL FOR THE ASSESSMENT YEAR 200 5-06 IN PARA 13 IS AS UNDER: 13. NOW COMING TO DEDUCTION U/S 80IB(10) IN RESPEC T OF SHANTINIKETAN PROJECT, ONCE THE TRIBUNAL HAS ACCEPT ED SUCH CLAIM OF THE ASSESSEE, THE RELEVANT OBSERVATIONS OF THE T RIBUNAL HAVE ALREADY BEEN REPRODUCED, THEREFORE, IT WAS A DEBATA BLE ISSUE. HENCE, PENALTY CANNOT BE HELD TO BE JUSTIFIED IN RE SPECT OF THAT PROJECT. THEREFORE, WE SEE NO JUSTIFICATION OF LEVY OF CONCEALMENT OF PENALTY IN RESPECT OF DEDUCTION U/S 80IB(10) CLA IMED BY THE ASSESSEE. THE PENALTY IS DELETED IN ITS ENTIRETY. ITA NO.4784 & 5052/M/2012 HAWARE ENGINEERS & BUILDERS PVT. LTD. 5 8. FOLLOWING THE ORDER OF THIS TRIBUNAL FOR THE ASS ESSMENT YEAR 2005-06 WE DELETE THE PENALTY LEVIED U/S 271(1)(C) IN RESPE CT OF THE PROJECT SHANTINIKETAN. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF NOVEMBER 2013 SD/- SD/- ( . . !' ) # $% (N. K. BILLAIYA) ACCOUNTANT MEMBER ( ) & $% (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 20 TH NOVEMBER 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI