M/s. Shree Swami Developers, Pune V. ITO, Pune

ITA 690/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3371 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 09-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS MANJU AJWANI
• Assessee Lawyers: P S SHINGTE
• Keywords: Revised return
• Section: 139(5); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 690/PN/2009 (ASSTT. YEAR : 2005-06) M/S. SHREE SWAMI DEVELOPERS BHAKTI SAMARTH CHAYYA, OPPOSITE SYNDICATE BANK, TALEGAON STATION, TAL. MAVAL, DIST. PUNE PAN: AAFFS2653K . APPELLANT V. INCOME TAX OFFICER, WD- 8(4), PUNE . RESPONDENT APPELLANT BY : SHRI P.S. SHINGTE RESPONDENT BY : MRS. MANJU AJWANI ORDER PER D. KARUNAKARA RAO, AM THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE ORD ER OF THE CIT(A)- III, PUNE DT. 30.3.2009 FOR THE A.Y. 2005-06. THE GROUNDS RAI SED BY THE ASSESSEE READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAVE GRAVELY ERRED IN IMPOSING THE PENALTY OF RS. 8,18, 920/- U/S 271(1)(C), OF INCOME TAX ACT 1961 WITHOUT APPRECIATING THE FACT THAT , AT THE TIME OF FILING THE RETURN ASSESSEE WAS ENTITLED TO CLAIM THE DEDUCTION U/ S 80IB(10) OF INCOME TAX ACT 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEALS) GRAVELY ERRED IN CONCLUDING THAT APPELLATE FAILED TO PRODUCE COPIES OF BUILDING PLAN AND FAILED TO SUBSTANTIATE ITS SUBMISSION REGAR DING WITHDRAWAL OF CLAIM U/S 80IB(10) WITHOUT CONSIDERING THE FACT THAT ALL RELEV ANT MATERIAL WAS PRODUCED/SUBMITTED BEFORE HIM. 2. ON FACTS, IT IS THE CASE WHERE THE ASSESSEE FILED THE RETURN OF INCOME MAKING A CLAIM OF DEDUCTION OF RS 22,37,878/- U/S 80IB(10) ERRONEOUSLY AND THE SAME SOUGHT TO BE REVISED U/S 139(5) OF THE ACT BY WITHDRA WING THE CLAIM OF SAID DEDUCTION. ON FINDING THAT THE SAID REVISED RETURN OF INCOME IS BEYOND PERMITTED PERIOD OF TIME, THE ASSESSMENT WAS COMPLETED WITHOUT RECOGNIZING THE IMPUGNED REVISED RETURN AND CONSIDERING THE ORIGINAL RETURN OF INCO ME. THE CLAIM OF THE DEDUCTION U/S 80IB(10) WAS OBVIOUSLY DENIED BASED O N THE DETAILS FURNISHED BY THE ASSESSEE IE ORIGINAL AND THE INVALID REVISED RETURN. T HE AO INITIATED AND LEVIED THE ITA NO690/PN/2009 M/S. SHREE SWAMI DEVELOPERS A.Y.2005-06 2 PENALTY U/S 271(1)(C) OF THE ACT FOR FURNISHING OF IN ACCURATE PARTICULARS. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT THERE IS DEFAULT ON PART OF THE ASSESSEE AS FAR AS THE FURNISHING OF PARTICULARS ARE CONCERNED. THE RETURN INCLUDES ALL THE RELEVANT PARTICULARS. THE CLAIM MADE IN THE ORIGINAL RETURN WAS SUBSEQUENTLY WITHDRAWN BY THE ASSESSEE BY WAY OF FURN ISHING OF REVISED RETURN, OF COURSE BEYOND TIME. MERE FOR REASONS OF TECHNICALITIES , THE ASSESSEES ATTEMPTS TO VOLUNTARILY MAKING CORRECT CLAIM SHOULD BE APPRECIATED AND ACCORDINGLY, THE IMPUGNED PENALTY SHOULD BE DELETED. THE COUNSEL ARG UED RELYING ON THE SUPREME COURT DECISION IN THE CASE OF RELIANCE PETRO-PRODUCTS (P) LTD (36 DTR (SC) 449) FOR THE PROPOSITION THAT MAKING AN INCORRECT CLAIM IN LAW CANNOT TENTAMOUNT TO FURNISHING OF INACCURATE PARTICULARS AND MERELY BE CAUSE THE ASSESSEE CLAIMED DEDUCTION WHICH HAS NOT BEEN ACCEPTED BY THE BY THE REVENUE, PENALTY U/S 271(1)(C) IS NOT ATTRACTED. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED HEAV ILY ON THE ORDERS OF THE REVENUE. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDERS OF T HE REVENUE AND THE CASE LAWS RELIED ON BY THE PARTIES. IN THE INSTANT CA SE, WE FIND THAT THERE IS A CLAIM MADE IN THE ORIGINAL RETURN AND THE SAME WAS EFFECTIVE LY WITHDRAWN BY THE ASSESSEE BY WAY OF FILING OF THE IMPUGNED REVISED RETURN. WE H AVE ALSO PERUSED THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF RELIANCE PETROPRO DUCTS LTD (36 DTR (SC) 449) AND FIND THAT THE PENALTY IS NOT LEVIABLE IN T HIS CASE FOR THE REASON THAT THE MAKING AN INCORRECT CLAIM IN LAW CAN NOT TENTAMOUNT TO FURNISHING OF INACCURATE PARTICULARS AND MERELY BECAUSE THE ASSESSEE CLAIME D DEDUCTION WHICH HAS NOT BEEN ACCEPTED BY THE BY THE REVENUE, PENALTY U/S 271(1)( C) IS NOT ATTRACTED . ACCORDINGLY, THE PENALTY IS DELETED. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 6TH DAY OF SEPT EMBER, 2010. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE, DATED THE 6TH SEPTEMBER, 2010 US ITA NO690/PN/2009 M/S. SHREE SWAMI DEVELOPERS A.Y.2005-06 3 COPY OF THE ORDER IS FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT- V, PUNE 4. THE CIT(A)- III, PUNE 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE