CONCRETE IDEAS REALTORS PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 12 (1) (4), MUMBAI

ITA 6768/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1439 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 29-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHI RAM KARTIKEYAN LD
• Section: 271(1)(c); 143(3)

Judgement Text

ITA NO.6768/MUM/2017 CONCRETE IDEAS REALTORS P.LTD. ASSESSMENT YEAR :2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.6768/MUM/2017 ( / ASSESSMENT YEAR:2010-11) CONCRETE IDEAS REALTORS PVT.LTD. 901, EMPRESSA AMORE STATION ROAD, KHAR (W) MUMBAI-400 052. / VS. I TO - 12(1)(4) AAYKAR BHAVAN M.K. ROAD MUMBAI-400 020. ./ ./PAN/GIR NO. AACCC-3864-B ( ! /APPELLANT ) : ( '#! / RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : ABHI RAM KARTIKEYAN - LD.DR / DATE OF HEARING : 13/03/2019 / DATE OF PRONOUNCEMENT : 18/032019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2010-11 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-20, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-20/IT-85/2013-14 DATED 16/08/2013 QUA CONFIRMATION OF PENALTY U/S 271(1)(C) FOR RS.5.30 LACS. NONE HAS APPEARED FOR ASSESSEE. THE HEARING NOTICES SENT AT ADDRESS GIVEN IN FORM 36 HAS RETURNED TWICE. THERE IS NO INTIMATION OF CHANGE OF ADDRESS. LEFT WITH NO ITA NO.6768/MUM/2017 CONCRETE IDEAS REALTORS P.LTD. ASSESSMENT YEAR :2010-11 2 OPTION, WE PROCEED TO DISPOSE-OFF THE SAME ON THE B ASIS OF MATERIAL ON RECORD AND AFTER HEARING LD. DEPARTMENTAL REPRESENT ATIVE [DR] WHO JUSTIFIED THE CONFIRMATION OF PENALTY IN THE IMPUGN ED ORDER. 2. FACTS LEADING TO IMPOSITION OF IMPUGNED PENALTY ARE THAT THE ASSESSEE BEING RESIDENT CORPORATE ENTITY STATED TO BE ENGAGED AS ENGINEERS & ARCHITECTS DURING IMPUGNED AY WAS ASSESSED U/S 143(3) ON 31/01/2013 WHEREIN IT TRANSPIRED THAT THE ASSESSEE COMPUTED SHORT TERM CAPITAL GAINS OF RS.72.43 LACS ON SALE OF VARIOUS OFFICE PREMISES WHICH CONSTITUTED DEPRECIABLE BUSINESS ASSETS FOR THE ASS ESSEE. WHILE ARRIVING AT THE SAID GAINS, WRITTEN DOWN VALUE [WDV] OF THE OFFICE PREMISES AS PER THE COMPANIES ACT WAS CONSIDERED AS THE COST. FURTHER, EACH PREMISES WERE CONSIDERED AS SEPARATE BLOCK OF ASSETS, WHILE WORKING OUT THE GAINS. HOWEVER, THE WDV, IN TERMS OF SECTION 50, AS PER INCOME TAX ACT WAS TO BE CONSIDERED AS COST AND FURTHER THE COMPUT ATIONS WERE TO BE MADE CONSIDERING THE VARIOUS OFFICE PREMISES AS SIN GLE BLOCK OF ASSET. THE AFORESAID DIFFERENCES LED TO ENHANCEMENT OF GAI NS FROM RS.72.43 LACS TO RS.89.43 LACS, AGAINST WHICH IMPUGNED PENAL TY 271(1)(C) WAS INITIATED IN THE QUANTUM ASSESSMENT ORDER FOR FURNI SHING OF INACCURATE PARTICULARS OF INCOME. 3. DURING PENALTY PROCEEDINGS, THE ASSESSEE SUBMITT ED THAT THE SAME WAS BONA-FIDE MISTAKE WHICH WAS REALIZED ONLY AT THE TIME OF ASSESSMENT AND THEREFORE, THE PENALTY WAS NOT JUSTI FIED. HOWEVER, NOT CONNIVED LD. AO LEVIED PENALTY OF RS.5.30 LACS AGAI NST THE SAME. THE SAME, UPON CONFIRMATION BY FIRST APPELLATE AUTHORIT Y, IS UNDER APPEAL BEFORE US. ITA NO.6768/MUM/2017 CONCRETE IDEAS REALTORS P.LTD. ASSESSMENT YEAR :2010-11 3 4. UPON CAREFUL CONSIDERATION, WE FIND THAT THE GEN ESIS OF THE IMPUGNED PENALTY LIES IN THE WRONG COMPUTATIONS MAD E BY THE ASSESSEE. THE MISTAKE HAS ALREADY BEEN ADMITTED DURING ASSESS MENT PROCEEDINGS. IT IS OBSERVED THAT THE ASSESSEE WAS REQUIRED TO TA KE WDV AS PER INCOME TAX ACT AS AGAINST THE COMPANIES ACT AS TAKEN BY THE ASSESSEE AND SECONDLY, ALL THE PREMISES WERE TO BE CONSIDERED AS SINGLE BLOCK OF ASSETS. NEVERTHELESS, THE SAME COULD NOT B E TERMED AS FURNISHING OF INACCURATE PARTICULARS OF INCOME WHIC H JUSTIFIES IMPOSITION OF PENALTY U/S 271(1)(C). IN OUR OPINION, THE COMPUTAT IONAL ERROR, AT BEST, BE TERMED AS BONA FIDE ERROR ON THE PART OF THE ASSESSEE AND THE ASSESSEE STOOD BENEFITTED BY THE JUDGMENT OF HONBLE APEX CO URT RENDERED IN PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT [2012 25 TAXMANN.COM 400] AND ALSO BY THE DECISION RENDERED IN CIT VS. RELIANCE PETROPRODUCTS PVT. LTD. [2010 322 ITR 158]. THEREFORE, WE ARE INCLINED TO DELETE THE SAME. 5. THE APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MARCH, 2019. SD/- SD/- (MAHAVIR SINGH) (MA NOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 18/03/2019 SR.PS, JAISY VARGHESE ITA NO.6768/MUM/2017 CONCRETE IDEAS REALTORS P.LTD. ASSESSMENT YEAR :2010-11 4 !'#$ # / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. +, '%- , - , / DR, ITAT, MUMBAI 6. ,./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.