ACIT, Gurgaon V. M/s. DLF Info City Developers (Chennai) Ltd., Gurgaon

ITA 5134/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4190 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 13-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN CHANDRA
• Assessee Lawyers: SATYAJEET GOEL CAS
• Keywords: Period of limitation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A. NO. 5134/DEL/2015 A.Y. : 2009-10 ACIT, CIRCLE 1(1), GURGAON VS. M/S DLF INFO CITY DEVELOPERS (CHENNAI) LTD., 3 RD FLOOR, SHOPPING MALL COMPLEX, ARJUN MARG, DLF CITY, PHASE-IV, GURGAON (PAN:AACCD1488Q) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. NAVEEN CHANDRA, CIT(DR) ASSESSEE BY : SH. R.S. SINGHVI, & SATYAJEET GOEL, CAS ORDER PER H.S. SIDHU, JM REVENUE HAS FILED THE APPEAL AGAINST THE ORDER DA TED 11.6.2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)-1, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOW ING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN FACT AND LAW IN CANCELLING THE PENALTY OF RS. 12,85,50,180/- IMPOSED U/S. 271(1)(C) OF THE I.T. A CT. 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN FACT AND IN LAW IN CANCELLING THE PENA LTY U/S. 271(1)(C) ON ACCOUNT OF EXCESS DEDUCTION CLAIMED I N TERMS OF PROVISION OF SECTION U/S. 80IAB(10) READ WITH SE CTION 80IAB(3) OF THE ACT TO THE TUNE OF RS. 37.82 CRORE FOR MAKING EXAGGERATED AND UNREASONABLE CLAIM OF BENEFI T UNDER THE ACT. 3. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD , DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIM E OF HEARING OF APPEAL. 2. THE FACTS IN BRIEF ARE THAT RETURNED INCOME OF R S. 43,68,57,674/- WAS ASSESSED U/S. 143(3) OF THE INCOME TAX ACT, 196 1 (HEREINAFTER REFERRED AS THE ACT), VIDE ORDER DATED 30.12.2011 A T A TOTAL INCOME OF RS. 1025,32,87,330/-. PENALTY PROCEEDINGS U/S. 271( 1) OF THE ACT WERE ALSO INITIATED DURING THE COURSE OF ASSESSMENT PROC EEDINGS BY THE AO. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A) AGAINST THE ORDER U/S. 143(3) OF THE ACT, WHO VIDE HIS ORDER DATED 27 .12.2012 HAS ALLOWED PART RELIEF. DURING THE COURSE OF PENALTY PROCEEDIN GS, THE AO AFTER CONSIDERING THE ASSESSEES REPLY, HELD THAT IT HAD FURNISHED INACCURATE PARTICULARS OF ITS INCOME TO THE TUNE OF RS. 37,82, 00,95/- AND ACCORDINGLY, IMPOSED A PENALTY OF RS. 12,85,50,180/- U/S. 271(1) (C) OF THE ACT. AGGRIEVED WITH THE PENALTY ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 11.6.201 5 HAS DIRECTED THE 3 AO TO CANCEL THE PENALTY IN DISPUTE AND ALLOWED THE APPEAL OF THE ASSESSEE. AGAINST THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. LD. DR RELIED UPON THE ORDERS OF THE AO AND REIT ERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 4. AT THE TIME OF HEARING, LD. AR OF THE ASSESSEE R ELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS DE LETED THE PENALTY OF RS. 12,85,50,180/- IN DISPUTE BY OBSERVING THAT SIN CE THE VERY BASIS OF PENALTY STANDS QUASHED BY THE ITAT FOR THE AY 2009- 10, VIDE CONSOLIDATED ORDER DATED 13.11.2014 & IN ITA NOS. 1315 & 1316 A ND ITA NO. 1475 & 1467 IN ASSESSEE AND GROUP ASSOCIATE NAMELY, DLF CY BERCITY DEVELOPERS LTD. AND DISMISSED THE APPEAL OF THE REVENUES APP EAL BY RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE ITAT. IN THI S BEHALF HE FILED THE COPY OF THE TRIBUNALS ORDER DATED 13.11.2014 & ITS CORR IGENDUM DATED 19.11.2014 IN ASSESSEES OWN CASE AND HE REQUESTED THAT PENALTY IN DISPUTE MAY BE DELETED. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE RECORDS. WE FIND THAT PENALTY PROCEEDINGS U/S. 271 (1) OF THE ACT WERE INITIATED DURING THE COURSE OF ASSESSMENT PROCEEDIN GS BY THE AO. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE ORDER U/S. 143(3) OF THE ACT, WHO VIDE HIS ORDER DATED 27.12.2 012 HAS ALLOWED PART RELIEF. DURING THE COURSE OF PENALTY PROCEEDINGS, T HE AO AFTER CONSIDERING THE ASSESSEES REPLY, HELD THAT IT HAD FURNISHED IN ACCURATE PARTICULARS OF 4 ITS INCOME TO THE TUNE OF RS. 37,82,00,95/- AND ACC ORDINGLY, IMPOSED A PENALTY OF RS. 12,85,50,180/- U/S. 271(1)(C) OF THE ACT. WE NOTE THAT IT IS NOT IN DISPUTE THAT THE VERY BASIS OF PENALTY STAND S QUASHED BY THE TRIBUNAL FOR THE AY 2009-10, WHICH, VIDE ITS CONS OLIDATED ORDER DATED 13.11.2014 (IN ITA NOS. 1315 & 1316 AND ITA NOS. 14 75 & 1467 IN THE ASSESSEE'S CASE AND GROUP ASSOCIATE NAMELY, DLF CYB ERCITY DEVELOPERS LTD. & CORRIGENDUM DATED 19.11.2014), ALLOWED ASSES SEES APPEAL IN FULL AGAINST THE ORDER OF THE LD. CIT(A), AND DISMISSED DEPARTMENT'S APPEAL. THEREFORE, FOLLOWING THE ORDER 13.11.2014 OF ITAT, DELHI, AS AFORESAID, THE LD. CIT(A) HAS RIGHTLY CANCELLED THE PENALTY ORDER AND ALLOWED THE APPEAL OF THE ASSESSEE. 5.1 FURTHERMORE, ON THE MERITS OF THE CASE, IT IS R EVEALED THAT ON IDENTICAL FACTS WHEREIN THE ORDER OF THE ITAT FOR T HE A.Y. 2008-09 DELETING THE ENTIRE ADDITION, WAS AVAILABLE WITH THE ASSESSI NG OFFICER, PENALTY U/S 271(1)(C) OF THE ACT HAD NOT BEEN IMPOSED. THE ASSE SSING OFFICER, CONSIDERING THE FACTS OF THE CASE OUGHT TO HAVE EXE RCISED HER JURISDICTION U/S 275(1)(A) OF THE ACT, AND INSTEAD OF LEVYING TH E PENALTY AND CREATING A HUGE DEMAND, SHOULD HAVE KEPT THE PENALTY PROCEEDIN GS IN ABEYANCE, AS SHE HERSELF HAD NOT IMPOSED THE PENALTY ON IDENTICA L FACTS IN THE A. Y. 2008-09. THIS VIEW DRAWS SUPPORT FROM THE DECISIONS OF THE HON'BLE DELHI HIGH COURT, IN THE CASE OF CIT VS. MOHAIR INVESTMEN T AND TRADING CO. P. LTD. DATED 30.09.2011 IN ITA NO.511/2011 REPORTED A S (2012) 345 ITR 51,WHEREIN THE ISSUE OF LIMITATION AS ENSHRINED U/S 275(1)(A) OF THE 5 INCOME TAX ACT, 1961 WAS CONSIDERED. THE HON'BLE HI GH COURT OF DELHI HELD AS UNDER: '11. THUS WE ARE OF THE VIEW THAT THE PROVISO TO SECTION 275 (1) (A) OF THE ACT DOES NOT NULLIFY THE AVAILABILITY TO THE ASSESSING OFFICER OF THE PERIOD OF LIMITATION OF SIX MONTHS FROM THE END OF THE MONTH WHEN THE ORDER OF THE ITAT IS RECEIVED BY THE ASSESSING OFFICER. 5.2 IN ADDITION, ANOTHER SIGNIFICANT FACT IS THAT T HE LD. CIT(APPEALS) HAS ALLOWED FULL RELIEF TO THE ASSESSEE ON IDENTICAL FA CTS FOR THE ASSESSMENT YEARS 2010-11 AND 2011-12. THUS, NOT ONLY IN THE CU RRENT YEAR BUT IN PRECEDING AND SUCCEEDING YEARS AS WELL, NO ADDITION HAS BEEN MADE/SUSTAINED ON THE ISSUE WHICH HAS BEEN THE SUBJ ECT MATTER OF PENALTY U/S 271(1) (C) OF THE IT ACT. 6. HENCE, AFTER A CAREFUL CONSIDERATION OF THE FAC TS OF THE CASE, PARTICULARLY THE ORDER OF ITAT, DELHI, AS AFORESAID , IN ASSESSEES OWN CASE DELETING THE ENTIRE ADDITION AND SUBSEQUENT YEAR'S ORDERS OF THE LD. CIT(A) ALLOWING FULL RELIEF TO THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT THE PENALTY OF RS. 12,85,50,180/- IMPOSED U/S 271(1)(C) OF THE ACT WAS RIGHTLY DIRECTED TO BE CANCELLED, WHICH DOES NO T NEED ANY INTERFERENCE 6 ON OUR PART, HENCE, WE UPHOLD THE ACTION OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/10/2017. SD/- SD/- [L.P. SAHU] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 04/10/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY OR DER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES