M/s. Om Shiv Ashish Builders, Baroda V. The ACIT.,Circle-5, Baroda

ITA 659/AHD/2012

• Counselvise Citation: 65920514 RSA 2012
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-05-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 19-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI G.C.GUPTA , VICE PRESIDENT AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 659/AHD/2012 ASSESSMENT YEAR :2003-04 M/S. OM SHIV ASHISH BUILDERS C/O. SHRI VIKRAM R. GUPTA, TRISHA GALLERY, JETALPUR ROAD, ALKAPURI BARODA-390007 V/S . ASST. COMMISSIONER OF INCOME TAX, CIRCLE 5, BARODA PAN NO. AAAF04660Q (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI MUKUND BAKSHI, A.R. /BY RESPONDENT SHRI NIMESH YADAV, SR. D.R /DATE OF HEARING 30.05.2012 /DATE OF PRONOUNCEMENT 15.06.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS ASSESSEES APPEAL ARISES OUT OF ORDER OF C IT(A)-V,BARODA, ORDER DATED 23.12.2011 FOR ASSESSMENT YEAR 2003-04. IN WHICH, PENALTY FOR CONCEALMENT ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME HAS BEEN CONFIRMED BY THE CIT(A). ITA NO. 659/AHD/2012 A.Y.2003-04 PAGE 2 2. THE FACT OF THE CASE IS THAT THE ASSESSEE IS ENG AGED IN CONSTRUCTION OF PROJECT, NAMELY, OM SHIVASHISH TENAMENTS. THE ASSE SSEE FIRM HAS SHOWN PROFIT OF RS. 1,14,61,166/- AS HAVING BEEN DERIVED FROM THE DEVELOPMENT AND BUILDING OF THE HOUSING PROJECT. THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB AT RS. 1,12,70,781/- BUT THE A.O. HAD ANALYZED THE TERMS AND CONDITIONS OF THE AGREEMENT BETWEEN ASSESSEE AS WELL AS LAND OWNER AN D FINALLY, HE FOUND THAT HE IS NOT ENTITLED DEDUCTION U/S 80IB OF THE IT ACT . IN THIS CASE, ANOTHER SCRUTINY ORDER WAS PASSED U/S 143(3) READ WITH 147 OF THE I.T.ACT ON 27.11.2009 WHERE THE LD. A.O. DISALLOWED THE CLAIM U/S 80IB (10) OF RS.6,64,940/- ON ACCOUNT OF CLAIM ON THE SALES OF P LOT AND BUILDING CONSTRUCTED UP TO THE PLINTH LEVEL WAS DISALLOWED AS THE INCOME WAS NOT DERIVED FROM COMPLETE HOUSING PROJECT AS PER SECTION 80IB(10). THE A.O. HAD GIVEN REASONABLE OPPORTUNITY AT THE TIME OF IMPOSING PENA LTY WHICH WAS NOT FOUND CONVINCING TO HIM. THEREFORE, HE IMPOSED PENALTY U /S 271(1)(C) AT RS. 1,99,482/- ON 18.05.2010. 3. THE ASSESSEE IS IN FIRST APPEAL BEFORE LD. CIT(A ), WHO HAD CONFIRMED THE PENALTY BY FOLLOWING THE HONBLE AHMEDABAD ITAT DEC ISION IN CASE OF GUJARAT STATE FINANCIAL CORPORATION & HONBLE DELHI HIGH CO URT IN CASE OF ZOOM COMMUNICATIONS PRIVATE LTD. 191 TAXMAN 179 (DELHI) BECAUSE THE ASSESSEE HAD FAILED TO PROVE WITH NECESSARY EVIDENCE THAT TH ERE WAS A BONAFIDE REASON FOR FURNISHING INACCURATE PARTICULARS OF CLAIM OF D EDUCTION U/S 80IB(10). 4. NOW THE ASSESSEE IS BEFORE US. THE LD. COUNSEL FOR THE ASSEESSEE ARGUED THAT WHATEVER PARTICULARS OF INCOME WERE AVA ILABLE WITH THE ASSESSEE, ITA NO. 659/AHD/2012 A.Y.2003-04 PAGE 3 HAS BEEN FURNISHED IN RETURN AS WELL AS DURING THE COURSE OF ASSESSMENT PROCEEDING BEFORE THE A.O. THE ASSESSEE MADE A CLA IM U/S 80IB ON WHATEVER INCOME EARNED DURING THE YEAR, THE CLAIM OF DEDUCTI ON IS DEBATABLE. WHATEVER SUGGESTED BY THE ASSESSEES COUNSEL AT THE TIME OF FURNISHING RETURN, HE HAD CLAIMED THE DEDUCTION U/S 80IB (10) AT RS.6,64,940/ - EVEN PROJECT HAS NOT BEEN COMPLETED. THUS, NO PARTICULARS OF INCOME HAV E BEEN FURNISHED INACCURATE BUT CLAIMED AS DEDUCTION U/S 80IB(10). 5. FROM THE REVENUE SIDE, THE LD. D.R. SHRI NIMESH YADAV VEHEMENTLY RELIED UPON THE ORDER OF LD. CIT(A) AND A.O. AND AR GUED THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME. THEREF ORE, THE ORDER OF THE CIT(A) SHOULD BE CONFIRMED. 6. WE HAVE PERUSED THE PENALTY ORDER AS WELL AS QUA NTUM ADDITION FROM THE ASSESSMENT AS MENTIONED ABOVE, THE ASSESSEE CLA IMED DEDUCTION U/S 80IB(10) ON UNCOMPLETE PROJECT BUT PARTICULARS OF I NCOME HAD BEEN DISCLOSED BY THE ASSESSEE. THE DEDUCTION CLAIMED BY THE ASSE SSEE IS DEBATABLE. THEREFORE, WE HAVE CONSIDERED VIEW THAT LD. CIT(A) WAS NOT JUSTIFYING IN CONFIRMING THE PENALTY OF RS. 1,99,482/-. HENCE, H E ASSESSEES APPEAL IS ALLOWED. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (G.C.GUPTA) (T.R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY ITA NO. 659/AHD/2012 A.Y.2003-04 PAGE 4 S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07.06.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 11.06.2012 4) DATE OF CORRECTION X 5) DATE OF FURTHER CORRECTION X 6) DATE OF INITIAL SIGN BY MEMBERS 15.06.2012 7) ORDER UPLOADED ON ,, ,, 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 15.06.2012