ACIT CENCIR-29, MUMBAI V. HAWARE ENGINEERS & BUILDERS P. LTD, NAVI MUMBAI

ITA 90/MUM/2009

• Counselvise Citation: 9019914 RSA 2009
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 04-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 06-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GOLI SRINIWAS RAO
• Assessee Lawyers: H Y GURJAR
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER & SHRI R.S. PADVEKAR, JUDICIAL MEMBER. I.T.A. NO. 90/MUM/2009. ASSESS MENT YEAR : 2004-05. ASSTT. COMMISSIONER OF INCOME-TAX, M/S HAWARE ENGINEERS & BUILDERS CENTRAL CIRCLE-29, MUMBAI. VS. P. LTD., 413-416, VARDHAMAN MARKET, SECTOR -17, VASHI, NEW MUMBAI-400 70 5. PAN AAACH2577C. APPELLANT. RESPONDENT. C.O.NO. 195/MUM/2009 (I N ITA NO. 90/MUM/2009) ASS ESSMENT YEAR : 2004-05. M/S HAWARE ENGINEERS & BUILDERS ASSTT. COMMISSIONER OF P. LTD., MUMBAI. VS. INCOME-TAX, CENTRAL CIRCLE-29, MUMBAI. CROSS OBJECTOR. RESPONDENT DEPARTMENT BY : SHRI GOLI SRINIWAS RAO. A SSESSEE BY : SHRI H.Y. GURJAR. O R D E R. PER P.M. JAGTAP, A.M. : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LEARNED CIT(APPEALS), CENTRAL-V, MUMBAI DATED 07-10-2008 WH EREBY HE PARTLY CANCELLED THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) AND TH E SAME IS BEING DISPOSED OF 2 ITA NO. 90/MUM/2009 ASSTT. YEAR : 2004-05. ALONG WITH THE CROSS OBJECTION FILED BY THE ASSESSE E BEING C.O. NO. 195/MUM/2010. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WH ICH IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF HOUSIN G PROJECTS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED B Y IT ON 30-10-2004 DISCLOSING TOTAL INCOME OF RS.5,46.14,650/-. IN THE ASSESSMEN T COMPLETED U/S 143(3) VIDE AN ORDER DATED 27-12-2006, THE TOTAL INCOME OF THE ASS ESSEE WAS DETERMINED BY THE AO AT RS.14,58,83,200/- AFTER MAKING ADDITION, INTE R ALIA, ON ACCOUNT OF DISALLOWANCE OF ASSESSEES CLAIM FOR DEDUCTION OF R S.9,01,55,028/- U/S 80IB IN RESPECT OF PROFIT DERIVED FROM THE FOLLOWING THREE PROJECTS : 1. SHANTIKETAN, PLOT NO. 8A, SECTOR 8, HARGHAR . RS. 12,44,455/- 2. BALAJI TOWER, PLOT NOS. 29-32, 36 AND 37, SECTOR 30, VASHI. RS.3,77,36,067/- 3. SILICON TOWER, SANPADA, VASHI 46C/30A. RS.5,11,74,506/- ----------------------- --- TOTAL : RS.9,01,55,028/- ----------------------- --- THE ABOVE ADDITION MADE BY THE AO ON ACCOUNT OF DIS ALLOWANCE OF ASSESSEES CLAIM U/S 80IB WAS CONFIRMED BY THE LEARNED CIT(APP EALS) DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THIS ISSUE VIDE AN APPELLA TE ORDER DATED 02-08-2007. CONSEQUENTLY A NOTICE U/S 271(1)(C) WAS ISSUED BY T HE AO REQUIRING THE ASSESSEE TO SHOW CAUSE AS TO WHY PENALTY U/S 271(1)(C) SHOULD N OT BE IMPOSED IN RESPECT OF THE SAID ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF IT S CLAIM U/S 80IB. THE 3 ITA NO. 90/MUM/2009 ASSTT. YEAR : 2004-05. EXPLANATION OFFERED BY THE ASSESSEE IN RESPONSE TO THE SAID NOTICE WAS NOT FOUND ACCEPTABLE BY THE AO AND HE PROCEEDED TO IMPOSE A PENALTY OF RS.3,25,00,000/- U/S 271(1)(C) IN RESPECT OF THE DISALLOWANCE OF RS. 9,01,55,028/- MADE U/S 80IB HOLDING THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF ITS INCOME TO THAT EXTENT. ON APPEAL, THE LEARNED CIT(APPEALS) CANCELL ED THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) TO THE EXTENT THE SAME WAS IN RESP ECT OF DISALLOWANCE MADE U/S 80IB FOR THE PROFITS DERIVED BY THE ASSESSEE FROM T WO PROJECTS, NAMELY, BALAJI TOWERS AND SILICON TOWERS. HE, HOWEVER, CONFIRMED T HE PENALTY TO THE EXTENT THE SAME WAS IN RESPECT OF DISALLOWANCE OF ASSESSEES C LAIM FOR DEDUCTION U/S 80IB FOR THE PROFITS DERIVED FROM THE REMAINING PROJECT, NAM ELY, SHANTIKETAN. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(APPEALS), THE REVENUE HAS PREFERRED THIS APPEAL CHALLENGING THE RELIEF ALLOWED TO THE ASSESSEE WHER EAS THE ASSESSEE HAS ALSO FILED ITS CROSS OBJECTION CHALLENGING THAT PORTION OF THE LEA RNED CIT(APPEALS) ORDER WHEREBY HE PARTLY SUSTAINED THE PENALTY IMPOSED BY THE AO U/S 271(1)(C). 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY THE LEARNED COU NSEL FOR THE ASSESSEE, THE COORDINATE BENCH OF THIS TRIBUNAL VIDE ITS ORDER DA TED 30 TH MARCH, 2011 PASSED IN ITA NO. 6431/MUM/2007 HAS ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB IN RESPECT OF PROFITS DERIVED FROM ALL THE THR EE PROJECTS, NAMELY, SHANTIKETAN, BALAJI TOWER AND SILICON TOWER WHILE DISPOSING OF THE APPEAL FILED BY THE ASSESSEE IN THE QUANTUM PROCEEDINGS. THE VERY BASIS OF IMPOSITION OF THE IMPUGNED PENALTY U/S 271(1)(C) THUS NO MORE SURVIVE S AND THE PENALTY SO IMPOSED IS LIABLE TO BE CANCELLED HAVING NO LEGS TO STAND. ACCORDINGLY, THE ENTIRE PENALTY IMPOSED BY THE AO U/S 271(1)(C) IS CANCELLED DISMIS SING THE APPEAL OF THE REVENUE AND ALLOWING THE CROSS OBJECTION OF THE ASSESSEE. 4 ITA NO. 90/MUM/2009 ASSTT. YEAR : 2004-05. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED WHEREAS THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED. . ORDER PRONOUNCED ON THIS 15 TH DAY OF JULY, 2011. SD/- SD/- (R.S. PADVEKAR) (P.M. JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI, DATED: 15 TH JULY, 2011. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, H-BENCH. (TRUE COPY ) BY ORD ER ASSTT. R EGISTRAR, ITAT, MUMBAI BEN CHES, MUMBA I. WAKODE