THE ACIT, Bhopal V. M/s Sanee Infrastructure Pvt.Ltd., Bhopal

ITA 684/IND/2013

• Counselvise Citation: 68422714 RSA 2013
• Duration Of Justice: 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 26-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER ITA NO.684/IND/2013 A.Y.2006-07 ACIT 3(1), BHOPAL. VS. M/S. SANEE INFRASTRUCTURE PVT. LTD. D-19, MACHNA COLONY, 6 NO. BUS STOP, BHOPAL. PAN: AAGCS 8307M (APPELLANT) (RESPONDENT) REVENUE BY : SHRI R.A. VERMA, SR.D.R. ASSESSEE(S) BY : SHRI ARUN JAIN, A.R. /DATE OF HEARING : 08/09/2014 /DATE OF PRONOUNCEMENT: 12/09/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE EMANATING FR OM THE ORDERS OF LEARNED CIT(A)-II BHOPAL DATED 3 RD OF SEPTEMBER, 2013 AGAINST THE DELETION OF PENALTY OF RS.20 LACS LEVIED U/S.271(1) (C) OF IT ACT. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDERS PASSED U/S.143(3) DATED 26.12.2008 AND THE P ENALTY ORDER U/S.271(1)(C) DATED 26.03.2012 WERE THAT THE ASSESS EE COMPANY IS IN THE BUSINESS OF CIVIL CONSTRUCTION. THE ASSESSEE HAS CL AIMED AN EXEMPTION U/S.80IA OF RS.38,92,809/-. ACCORDING TO A.O., THE SAID DEDUCTION IS ADMISSIBLE TO NEW INFRASTRUCTURE FACILITY; HOWEVER, THE ASSESSEE WAS UNABLE TO DISCHARGE THE ONUS TO PROVE THE ELIGIBILI TY OF THE SAID CLAIM; ITA NO.684/IND/2013 ACIT-3(1),BHOPAL VS. M/S. SANEE INFRASTRUCTURE PVT. LTD., BHOPAL A.Y.2006-07 - 2 - HENCE, THE SAME WAS DISALLOWED. IN QUANTUM PROCEEDI NGS, THE SAID DISALLOWANCE WAS CHALLENGED BEFORE LEARNED CIT(A) W HO HAS AFFIRMED THE ACTION OF THE A.O. THAT ORDER OF LEARNED CIT(A) WAS FURTHER CHALLENGED BEFORE ITAT AND VIDE AN ORDER DATED 4 TH MARCH, 2010 DUE TO NON APPEARANCE THE APPEAL WAS DISMISSED BUT RECALLE D IN M.A. NO.96/IND/2012 (ARISING OUT OF ITA NO.489/IND/2010) A.Y. 2006-07 ORDER DATED 7.9.2012. HOWEVER, LATER ON, ITAT INDOR E BENCH, INDORE IN ITA NO.489/IND/2010 A.Y.2006-07 IN THE CASE TITLED AS M/S. SANEE INFRASTRUCTURE PVT. LTD., BHOPAL VS. ACIT-3(1), BHO PAL ORDER DATED 13.09.2012 HAS RESTORED THE ISSUE BACK TO THE FILE OF THE A.O. WITH A DIRECTION TO EXAMINE THE TERMS AND CONDITIONS OF EA CH AND EVERY CONTRACT ENTERED BY THE ASSESSEE WITH THE GOVERNMENT TO FIND OUT WHETHER THE ASSESSEE HAS WORKED SIMPLICITOR AS A CONTRACTOR OR AS A DEVELOPER OF INFRASTRUCTURE FACILITY AS A WHOLE. THE BENCH HAS A LSO OBSERVED THAT A MINUTE EXAMINATION OF TERMS AND CONDITIONS OF EACH CONTRACT IS REQUIRED TO BE UNDERTAKEN, EVEN THOUGH THE ASSESSEE HAS PLAC ED ON RECORD SOME OF THE LETTERS OF THE GOVERNMENT DEPARTMENT, WHICH HAS ALLOTTED THE DEVELOPMENT WORK TO THE ASSESSEE. THE RESPECTED CO- ORDINATE BENCH HAS MENTIONED THAT AS PER THEIR CONSIDERED VIEW THOSE L ETTERS OF THE DEPARTMENT WERE REQUIRED TO BE READ ALONG WITH DETA ILED TERMS AND CONDITIONS OF THE MAIN AGREEMENT ENTERED BY THE ASS ESSEE WITH THOSE DEPARTMENTS. 3. IN VIEW OF THE AFOREMENTIONED ORDER OF THE TRIBU NAL, SINCE THE ENTIRE CONTROVERSY HAD BEEN RESTORED BACK TO THE FI LE OF THE A.O. FOR DENOVO ADJUDICATION, THEREFORE, THE CONCEALMENT PEN ALTY IN QUESTION, BEING DEPENDENT UPON THE QUANTUM PROCEEDINGS, IS TO BE DECIDED AS PER ITA NO.684/IND/2013 ACIT-3(1),BHOPAL VS. M/S. SANEE INFRASTRUCTURE PVT. LTD., BHOPAL A.Y.2006-07 - 3 - THE FINAL OUTCOME OF THE QUANTUM PROCEEDINGS. CONSE QUENTLY, IT IS FAIR AND REASONABLE TO RESTORE THE ISSUE OF CONCEALMENT PENALTY BACK TO THE FILE OF THE A.O. TO BE DECIDED AS PER LAW IN THE LIGHT O F THE OUTCOME OF THE QUANTUM PROCEEDINGS. PRESENTLY, THE GROUND OF THE R EVENUE DOES NOT STAND IN THE EYES OF LAW; HENCE DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED PROTANTO . SD/- SD/- (P.K. BANSAL) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED 12/09/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. $%$&' # # ( / CONCERNED CIT 4. # # ( ( ) / THE CIT(A), INDORE 5. +,# &' , # # &' , ./ % / DR, ITAT, INDORE 6. ,01 2 / GUARD FILE. / BY ORDER, 3 33 3/ // /.# $4 .# $4 .# $4 .# $4 ( DY./ASSTT.REGISTRAR) ITAT, INDORE