M/s. Gitwako Farms (India) Pvt. Ltd., Delhi V. DCIT, New Delhi

ITA 5710/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3334 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 12-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SMT BEENA PILLAI, JUDICIAL MEMBER ITA NO.5710/DEL/2015 ASSESSMENT YEAR: 2005-06 GITWAKO FARMS (INDIA) PVT. LTD., 42, BIRBAL ROAD, JANGPURA EXTN., DELHI. PAN: AAACG1096K VS. DCIT, CIRCLE-12(1), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATISH AGGARWAL, CA DEPARTMENT BY : SHRI ATIQ AHMAD, SR. DR DATE OF HEARING : 20.11.2017 DATE OF PRONOUNCEMENT : 21.11.2017 ORDER PER R.S. SYAL, VP: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER PASSED BY THE CIT(A) ON 24.08.2015 UPHOLDING THE PE NALTY OF RS.8,67,376/- IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ITA NO.5710/DEL/2015 2 INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE ASSESSMENT YEAR 2005-06 . 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED RETURN ON 28.10.2005 DECLARING INCOME OF RS.3.06 CRORE. A SSESSMENT WAS COMPLETED U/S 143(3) AT RS.3.31 CRORE BY DISALLOWIN G DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB OF THE ACT. THEREAFTER, P ENALTY WAS IMPOSED U/S 271(1)(C) IN RESPECT OF SUCH DISALLOWANCE WHICH CAM E TO BE APPROVED BY THE LD. CIT(A). THE ASSESSEE IS AGGRIEVED AGINST TH E COUNTENANCE OF SUCH PENALTY. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REL EVANT MATERIAL ON RECORD. IT IS SEEN THAT THE CLAIM OF THE ASSESSEE FOR ALLOWING DEDUCTION U/S 80IB CAME TO BE ALLOWED BY THE ASSESSING OFFICE R FROM ASSESSMENT YEAR 1996-97 TO 2003-04. IT WAS FOR THE FIRST TIME THAT SUCH A CLAIM WAS REJECTED IN THE ORDER PASSED FOR THE ASSESSMENT YEA R 2004-05 WHICH WAS FOLLOWED FOR THE ASSESSMENT YEAR 2005-06 AS WELL. T HE TRIBUNAL ALLOWED THE ASSESSEES APPEAL ON THIS ISSUE FOR THE ASSESSM ENT YEAR 2004-05. A COPY OF SUCH ORDER DATED 20.02.2009 IS AVAILABLE ON RECORD. FOR THE ITA NO.5710/DEL/2015 3 ASSESSMENT YEAR 2005-06 ALSO, THE TRIBUNAL ACCEPTED THE ASSESSEES CLAIM AND ALLOWED DEDUCTION U/S 80IB. IT IS OBSERV ED THAT THE TRIBUNAL ORDER FOR THE ASSESSMENT YEAR 2004-05 CAME UP FOR C ONSIDERATION BEFORE THE HON'BLE HIGH COURT AND THE SAME GOT OVERTURNED. THEREAFTER, IN A MISCELLANEOUS APPLICATION FILED BY THE REVENUE, THE TRIBUNAL ACCEPTED THE DEPARTMENTAL CASE AND MODIFIED ITS ORDER DENYIN G THE BENEFIT OF DEDUCTION U/S 80IB FOR SUCH YEAR. BE THAT AS IT MAY , IT IS SEEN THAT WHEN THE ASSESSEE FILED ITS RETURN ON 28.10.2005 FOR THE YEAR UNDER CONSIDERATION, THE ADMISSIBILITY OF DEDUCTION U/S 8 0IB WAS AN ESTABLISHED POSITION INASMUCH AS THE ASSESSING OFFICER HAD HIMS ELF ALLOWED SUCH DEDUCTION FOR VARIOUS YEARS UPTO 2003-04. IT WAS O NLY PURSUANT TO THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE ASS ESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05, WHICH WAS DELIVERED ON 18. 02.2011, THAT THE CLAIM OF DEDUCTION GOT JEOPARDISED. THIS SHOWS THA T AT THE TIME OF FILING THE RETURN ON 28.10.2005, THE ADMISSIBILITY OF SUCH A DEDUCTION WAS AN ACCEPED POSITION AND CONSEQUENTLY THE ASSESSEE WAS UNDER A BONA FIDE BELIEF ABOUT THE ALLOWABILITY OF SUCH DEDUCTION ON THE BASIS OF SUCH CLAIM BEING ALLOWED IN THE PAST. THE MERE FACT THAT SUCH A CLAIM NOW STANDS ITA NO.5710/DEL/2015 4 NEGATIVED IN QUANTUM PROCEEDINGS CANNOT LEAD TO IMP OSITION OR CONFIRMATION OF PENALTY U/S 271(1)(C) BECAUSE ON TH E DATE OF FILING THE RETURN, THE ASSESSEE NEITHER CONCEALED ITS INCOME N OR FURNISHED INACCURATE PARTICULARS BY CLAIMING SUCH A DEDUCTION . WE, THEREFORE, OVERTURN THE IMPUGNED ORDER AND DELETE THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT. 4. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2017. SD/- SD/- [BEENA PILLAI] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 21 ST NOVEMBER, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.