The ITO, Vapi Ward 3, Vapi V. M/s Royale Impex,

ITA 933/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6158 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 27-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P R GHOSH
• Assessee Lawyers: M K PATEL
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND A. MOHAN ALAN KAMONY, AM) ITA NO.933/AHD/2009 A. Y.: 2004-05 THE INCOME TAX OFFICER, VAPI WARD =3, ROOM NO.204, SHIVAM COMMERCIAL COMPLEX, N. H. NO.8, VAPI VS M/S. ROYALE IMPEX, SURVEY NO.327/4, ATHAL U. T. OF DADRA NAGAR HAVELI PA NO. AAEFR 9752 Q (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. R. GHOSH, DR RESPONDENT BY SHRI M. K. PATEL, AR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-I, SURAT DATED 15 TH JANUARY, 2009, FOR ASSESSMENT YEAR 2004-05 CHALLENG ING THE DELETION OF LEVY OF PENALTY U/S 271 (1) ( C ) OF THE IT ACT. 2. IN THE PENALTY ORDER, THE AO HAS STATED THAT TH E ASSESSEE HAD FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR UNDE R APPEAL DECLARING NIL INCOME. ASSESSMENT WAS COMPLETED DISALLOWING TH E DEDUCTION OF RS.35,50,730/- CLAIMED U/S 80 IB OF THE IT ACT. PEN ALTY WAS ACCORDINGLY IMPOSED VIDE SEPARATE ORDER WHICH IS CH ALLENGED BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) CONSIDERING THE FACT THAT ALL ITA NO.933/AHD/2009 ITO, VAPI WARD-3, VAPI VS M/S. ROYALE IMPEX 2 THE FACTS HAVE BEEN DISCLOSED AND THAT NO FACTS HAV E BEEN CONCEALED HELD THAT MERE DISALLOWANCE OF DEDUCTION U/S 80IB O F THE IT ACT WOULD NOT AMOUNT TO CONCEALMENT OF INCOME AND ACCORDINGLY DELETED THE PENALTY. 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET SUBMITTED THAT THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBU NAL ON QUANTUM CHALLENGING THE DISALLOWANCE U/S 80 IB OF THE IT AC T IN ITA NO.2971/AHD/2007 OF THE SAME ASSESSMENT YEAR AND TH E TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 11-06-2010 ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/ S 80 IB OF THE IT ACT. THE AO WAS HOWEVER, DIRECTED TO VERIFY THE CA LCULATION OF THE DEDUCTION U/S 80 IB OF THE IT ACT. COPY OF THE ORDE R OF THE TRIBUNAL IS PLACED ON RECORD. COPY OF THE SAME IS ALSO GIVEN TO THE LEARNED DR WHO HAS NOT DISPUTED THE ORDER OF THE TRIBUNAL. 4. ON CONSIDERATION OF THE FACTS, WE ARE OF THE VIE W THERE IS NO MERIT IN THE DEPARTMENTAL APPEAL. PENALTY WAS IMPOS ED ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80 IB OF THE IT ACT. THE MATTER REACHED THE TRIBUNAL AND CLAIM OF THE ASSESSEE HAS BEEN ALL OWED SUBJECT TO VERIFICATION OF THE CALCULATION OF DEDUCTION BY THE AO VIDE ORDER DATED 11-06-2010. THEREFORE, THE BASIS OF LEVY OF PENALTY ITSELF HAS DISAPPEARED AND AS SUCH THERE IS NO JUSTIFICATION F OR LEVY OF THE PENALTY ON THE SAME MATTER IN ISSUE. THE DEPARTMENT AL APPEAL HAS NOT MERIT AND IS DISMISSED. ITA NO.933/AHD/2009 ITO, VAPI WARD-3, VAPI VS M/S. ROYALE IMPEX 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19-07-2011 SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 19-07-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD