The DCIT, Central Circle-1(1), Ahmedabad V. Aurangabad Jalna Tollway Ltd., Ahmedabad

ITSSA 90/AHD/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7868 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 03-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR BANAWARI LAL
• Assessee Lawyers: T P HEMANI
• Keywords: Initiation of penalty proceedings; Capital receipt; Revised return
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE DCIT, CENTRAL CIRCLE - 1(1), ROOM NO. 303, AAYKAR BHAVAN, AHMEDABAD (APPELLANT) VS AURANGABAD JALNA TOLLWAY LTD. SADBHAV HOUSE, OPP. LAW GARDEN POLICE CHOWKI, ELLISBRIDGE ,AHMEDABAD PAN: AAGCA1318J (RESPONDE NT) REVENUE BY : DR. BANAWARI LAL, CIT - D . R. ASSESSEE BY: S H RI T.P. HEMANI , A.R. DATE OF HEARING : 05 - 07 - 2 018 DATE OF PRONOUNCEMENT : 19 - 09 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS REVENUE S APPEAL FOR A.Y. 2009 - 10 , ARI SES FROM ORDER OF THE CIT(A) - I, AHM EDABAD DATED 16 - 07 - 2013 , IN PROCEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. T HE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - I T (SS) A NO . 90 / A HD/ 20 16 A SSESSMENT YEAR 200 9 - 10 I.T(SS). A NO. 90 /AHD/20 16 A.Y. 2009 - 10 PAGE NO DCIT VS. AURANGABAD JALNA T OLLWAY LTD. 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE PENALTY U/S.271(L)(C) OF RS.27,72,960/ - WITHOUT APPRECIATING THE FACTS OF THE CASE & RELEVANT PROVISIONS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED T O THE ABOVE EXTENT. 3. THE SOLE GROUND OF APPEAL OF THE REVENUE IS AGAINST THE DECISION OF CIT(A) IN DELETING THE PENALTY LEVIED BY T H E ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT OF RS. 27 , 72 , 960/ - . 4. IN THIS CASE, THE ASSESSEE HAS FILED ORIGINAL RETU RN OF INCOME ON 14 - 12 - 2011 DECLARING TOTAL INCOME OF RS. 89,73,976/ - SHOWING INTEREST INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. SUBSEQUENTLY, THE ASSESSEE HAS FI L E D REVISED RETURN OF INCOME ON 10 TH DEC, 2012 BY SHOWING NIL INCOME AND CAPITALIZED TH E COST OF INTANGIBLE ASSET UNDER DEVELOPMENT . THE ASSESSMENT IN THIS CASE WAS FINALIZED U/S. 143(3) R.W.S. 153A OF THE ACT VIDE ORDER DATED 28 - 03 - 2013 DETERMINING TOTAL INCOME AT RS. 89 , 73 , 980/ - . THE ASSESSING OFFICER STATED THAT INTEREST ON MOBILIZATION ADVANCES PERTAINED TO PRE - CONSTRUCTION PERIOD WHICH WAS TAXABLE UNDER THE HEAD INCOME FROM OTHER SOURCES . THE ASSESSING OFFICER HAS ALSO INITIATED PENALTY PROCEEDINGS FOR FURNISHING INACCURATE PARTICULARS OF INCOME TO THE AMOUNT OF RS. 89 , 73 , 980/ - . THER EFORE, THE ASSESSING OFFICER HAS ISSUED NOTICE U/S. 271(1)(C) OF THE ACT ON 28 TH FEB, 2015. THE ASSESSEE HAS REPLIED INITIATION OF PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT IS MISCONCEIVED, MIS DIRECTED AND CONTRADICTORY TO THE PROVISION OF I.T. ACT. HE HAS FURTHER STATED THAT TH E RE IS NO CASE AT ALL FOR APPLYING PENALTY PROCEEDINGS U/S. 271(1) (C) TO THE ASSESSEE S CASE. IT WAS FURTHER EXPLAINED THAT IT HAD NEITHER CONCEALED T HE PARTICULARS OF ANY INCOME NO IT HAD FURNISHED INACCURATE PARTICULARS OF I NCOME, THEREFORE, NO PENALTY COULD BE IMPOSED U/S. 271(1)(C) OF THE ACT. THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLA N AT ION OF THE ASSESSEE AND STATED THAT PENALTY U/S. 271(1) OF TH E AC T IS LEVIABLE IF THE ASSESSING OFFICER IS SATISFIED IN THE COURSE OF ANY PENALTY PROCEEDINGS UNDER THIS CAT THAT A N Y PERSON HAS CONCEALED THE I.T(SS). A NO. 90 /AHD/20 16 A.Y. 2009 - 10 PAGE NO DCIT VS. AURANGABAD JALNA T OLLWAY LTD. 3 PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THERE IS NO COGENT EXPLANATION GIVEN BY TH E ASSESSE TO EXPLAIN WHY NOT T HE ADDITIONAL INCOME WAS NOT DIS CLOSED IN THE RETURN . HE HAS FURTHER STAT E D THAT ASSESSEE HAS FILED ITS ORIGINAL RETURN OF INCOME AFTER GOING THROUGH RELEVANT MATERIAL AND DOCUMENT . THEREAFTER, THE ASSESSE HAS ALTERED AND FILED A REVISED RETURN BECAUSE OF CAPITALIZING THE COST OF INTAN GIBLE ASSET UNDER DEVELOPMENT . THEREFORE, HE WAS OF THE VIEW THAT ASSESSEE HAS DELIBERATELY SUPPRESSED ITS REAL INCOME BY CLAIMING THAT INTEREST INCOME WAS OF THE NATURE OF CAPITAL RECEIPT. T HEREFORE , THE ASSESSING OFFICER HAS IMPOSED THE PENALTY OF RS . 2 7 , 72 , 960/ - FOR FURNISHING INACCURATE PARTICULARS OF INCOME U/S. 271(1) (C) OF THE ACT. 5. AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER STATING THAT ASSESSEE HAS FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WELL AS INCOME I N THE RETURN OF INCOME , THEREFORE, THE PENALTY LEVIED BY THE ASSESSING OFFICER WAS DELETED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE ASSESSEE HAS FURNISHE D ORIGINAL RETURN OF INCOME DECLARING INCOME OF RS. 89 , 73 , 976/ - SHOWING INTEREST AS INCOME FROM OTHER SOURCES. SUBSEQUENTLY, THE RETURN OF INCOME WAS REVISED ON THE GROUND THAT INTEREST INCOME SHOWN BY THE ASSESSEE WAS OF THE NATURE OF CAPITAL RECEIPT. T HIS RECEIPT WAS BY WAY OF INTEREST ON MOBILIZATION ADVANC ES AND SET OFF AGAINST CAPITAL COST OF THE PROJECT . AFTER CONSIDERING THE ABOVE FAC T S AND FINDINGS OF THE LD. CIT(A), W E OBSERVED THAT ASSESSEE HAS FURNISHED COMPLETE PARTICULARS OF INCOME AND THE C IRCUMSTANCES UNDER WHICH REVISED RETURN OF INCOME WAS FILED . LOOKING TO THESE FACTS, IT IS CLEAR THAT ASSESSEE HAS FI L ED COMPLETE PARTICULAR OF INCOME IN SUPPORT OF ITS CLAIM. THESE FACTS DEMONSTRATE THAT CLAIM OF ASSESSEE WAS DEBATABLE AND THERE WAS N O CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME IN THE CASE O F THE ASSESSEE. THEREFORE , WE CONSIDER THAT LD. CIT(A) HAS NOT MA D E ANY MISTAKE I.T(SS). A NO. 90 /AHD/20 16 A.Y. 2009 - 10 PAGE NO DCIT VS. AURANGABAD JALNA T OLLWAY LTD. 4 IN DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE. ACCORDINGLY , THE AP PEAL OF THE REVENUE IS DISMISSED. 7. IN T HE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PR ONOUNCED IN THE OPEN C OURT ON 19 - 09 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 19 /09 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,