ITO Wd 5[3] Pune, Pune V. M/s Tushar Developers, Pune

ITA 821/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66840 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 24-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: V L JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.821/PN/2012 (ASSESSMENT YEAR 2003-04) INCOME TAX OFFICER, WARD-5(3), PUNE. .. APPELLANT VS. M/S. TUSHAR DEVELOPERS, 1239, BHAWANI PETH, NEAR PALKHI CHOWK, PUNE 411042. .. RESPONDENT PAN NO.AACFT 4558L ASSESSEE BY : SHRI V.L. JAIN REVENUE BY : MS. ANN KAPTHUAMA DATE OF HEARING : 17-04-2013 DATE OF PRONOUNCEMENT : 19-04-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 15-09-2011 OF THE CIT(A)-III, PUNE RELATING TO ASSESSMENT YEAR 2 003-04. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER : 1) THE ORDER OF THE COMMISSIONER OF INCOME TAX (AP PEALS ) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2) THE COMMISSIONER OF INCOME TAX ( APPEALS ) ERRED ON FACTS AND IN LAW IN ANNULLING THE PENALTY LEVIED WITHOUT APPRECIATING A ND CONSIDERING THE MERITS ON WHICH THE DEDUCTION UNDER SECTION 80IB(10) WAS DISA LLOWED BY THE ASSESSING OFFICER. 3) THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED O N FACTS AND IN LAW IN ANNULLING THE PENALTY LEVIED BY THE A SSESSING OFFICER WITHOUT CONSIDERING THE FACTS AND MERELY ON THE SUBMISSION OF THE ASSESSEE THAT THE ORIGINAL ORDER OF QUANTUM ADDITION HAS BEEN SET ASIDE BY THE HON'BLE TRIBUNAL WITHOUT APPRECIATING THE FACT THAT THESE ARE TWO INDEPENDEN T PROCEEDINGS. . 4) THE ORDER OF THE COMMISSIONER OF INCOME TAX ( AP PEALS ) BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5) THE APPELLANT CRAVES , LEAVES TO ADD , AMEND , A LTER OR DELETE ANY OF THE ABOVE GROUND OF APPEAL DURING THE COURSE OF THE APPELLATE PROCEEDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 2 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET FILED A COPY OF THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.254 AND SUBMITTED THA T AFTER THE APPEAL WAS SET-ASIDE BY THE TRIBUNAL TO THE FILE OF THE AO, THE AO HAS PASSED T HE ASSESSMENT ORDER ACCEPTING THE CLAIM OF DEDUCTION U/S.80IB(10) AND DETERMINED THE TAXABL E INCOME AT NIL. THEREFORE, THE PENALTY DOES NOT SURVIVE AND THE APPEAL FILED BY TH E REVENUE HAS TO BE DISMISSED AS INFRUCTUOUS. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY C ONCEDED THE ABOVE FACTS. 5. AFTER HEARING BOTH THE SIDES WE FIND THE AO VIDE ORDER DATED 28-03-2003 PASSED U/S.143(3) R.W.S. 254 HAS ALLOWED THE CLAIM OF DEDU CTION U/S.80IB(10) AFTER THE MATTER WAS RESTORED TO HIS FILE BY THE ITAT VIDE ORDER DATED 3 1-05-2011. SINCE THE CLAIM OF ASSESSEE U/S.80IB(10) HAS BEEN ACCEPTED BY THE AO AND THE IN COME HAS BEEN DETERMINED AT NIL, THEREFORE, THE PENALTY DOES NOT SURVIVE AND THE GRO UNDS RAISED BY THE REVENUE BEING INFRUCTUOUS ARE DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 19 TH OF APRIL, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED THE 19 TH APRIL 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-III, PUNE 4. THE CIT-III, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE T RIBUNAL, PUNE.