Addl.CIT, Special Range, Ghaziabad V. Shipra Estate Ltd., Ghaziabad

ITA 5175/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6192 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 31-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRATEEK K GUPTA
• Section: 271(1)(c); 80IB; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, G: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.5175 /DEL/2018 [ASSESSMENT YEAR: 2012-13] ADDL. CIT, SPECIAL RANGE, GHAZIABAD, CGO-II, KAMLA NEHRU NAGAR, GHAZIABAD. M/S SHIPRA ESTATE LTD. PLOT NO.9, CORPORATE OFFICE, SHIPRA MALL, INDIRAPURAM, GHAZIABAD PAN-AACCS6116J REVENUE ASSESSEE REVENUE BY SH. H. K. CHOUDHARY, CIT-DR ASSESSEE BY SH. PRATEEK K. GUPTA CA DATE OF HEARING 07.09.2021 DATE OF PRONOUNCEMENT 07.09.2021 ORDER PER R.K. PANDA, AM, THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 10.05.2018 OF THE LEARNED CIT(A)-III, K ANPUR, RELATING TO AY 2012-13. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER:- THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE PE NALTY U/S 271(1)(C) ONLY ON THE BASIS OF INTENTION OF THE ASS ESSEE AND BY IGNORING THE FACT THAT IT WAS THE AO WHO BROUGHT OU T THE FACT THAT THE ASSESSEE HAS NOT FULFILLED THE CONDITIONS MANDA TORY TO CLAIM DEDUCTION U/S 80IB OF THE INCOME TAX ACT. RELIANCE IS PLACED ON JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE O F SHANTI RAMANAND SAGAR VS CIT (2018) 402 ITR 245. 2 ITA NO.5175/DEL/2018 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A COMPANY ENGAGED IN THE BUSINESS OF CONSTRUCTION AND SALE OF FLATS AT DIFFERENT PLACES IN GHAZIABAD. IT ALSO PU RCHASES LAND FOR CARRYING OUT THE SAID ACTIVITIES AT OTHER PLACES. I T FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.199,98,55,11 0/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB(10) OF RS.28,84,19,207/- BUT RESTRICTED IT TO RS.13,00,15, 605/- FOR NEO PROJECT SUN CITY PHASE-I, INDRAPURAM, GHAZIABAD. AF TER CONSIDERING VARIOUS ARGUMENTS ADVANCED BY THE ASSES SEE, THE AO REJECTED THE CLAIM OF DEDUCTION MADE BY THE ASSE SSEE U/S 80IB(10) OF THE ACT AND MADE ADDITION OF THE SAME T O THE TOTAL INCOME OF THE ASSESSEE. SUBSEQUENTLY, THE AO INITI ATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. REJECTING THE VARIOUS EXPLANATION GIVEN BY THE ASSESSEE, THE AO LEVIED PE NALTY OF RS.4,21,83,563/- U/S 271(1)(C) OF THE ACT. 4. IN APPEAL, THE LEARNED CIT(A), DELETED THE PENAL TY LEVIED BY THE AO. 5. AGGRIEVED WITH SUCH ORDER OF THE LEARNED CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3 ITA NO.5175/DEL/2018 6. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUT SET, DREW THE ATTENTION OF THE BENCH TO THE ORDER OF THE TRIB UNAL IN ITA NO.740/DEL/2016, ORDER DATED 22 JANUARY, 2021 FOR A Y 2012-13 AND SUBMITTED THAT THE TRIBUNAL AT PARA 17 OF THE O RDER HAS DISCUSSED THE ISSUE AND ALLOWED THE CLAIM OF DEDUCT ION U/S 80IB(10) OF THE ACT. THEREFORE, ONCE THE ADDITION MADE BY THE AO IS DELETED, THE PENALTY DOES NOT SURVIVE AND THE REFORE, THE GROUND RAISED BY THE REVENUE HAS TO BE DISMISSED. 7. THE LEARNED DR, ON THE OTHER HAND, FAIRLY CONCED ED THAT THE TRIBUNAL HAS DECIDED THE APPEAL IN FAVOUR OF THE AS SESSEE. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE LEARNED CIT(A) AND THE PAPER BOOK FILED ON BEHALF O F THE ASSESSEE. WE FIND THE AO IN THE INSTANT CASE LEVIED PENALTY OF RS.4,21,83,562/- U/S 271(1)(C) OF THE ACT ON THE GR OUND THAT THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) AMOU NTING TO RS.13,00,15,605/- IS NOT IN ACCORDANCE WITH LAW. WE FIND THE LEARNED CIT(A) DELETED THE PENALTY LEVIED BY THE AO BY RELYING ON VARIOUS DECISIONS. WE FIND THE TRIBUNAL IN ASSESSEE S OWN CASE VIDE ITA NO.740/DEL/2016, ORDER DATED 22.01.2021 FO R AY 2012- 13 IN PARA 17 OF THE ORDER HAS DECIDED THE ISSUE AN D ALLOWED THE 4 ITA NO.5175/DEL/2018 CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. SINCE, THE QUANTUM ADDITION MADE BY THE AO HAS ALREADY BEEN DELETED BY THE TRIBUNAL, THEREFORE, PENALTY DOES NOT SURVIVE. WE, THEREFORE, HOLD THAT NO PENALTY U/S 271(1)(C) OF THE ACT IS LEVIABL E. ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 07/09/2021. SD/- SD/- [SUCHITRA KAMBLE] [R.K.PA NDA] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 07/09/2021. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI