LODHA & AGARWA; DEVELOPERS, V. ITO WD 18(2)(3),

MA 535/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6189 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2003-2004
• Appeal Filed On: 01-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: CHETAN KARIA
• Keywords: Rectification of order; Wrong claim
• Section: 143(3); 80IB; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI J. SUDHAKAR REDDY (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) M.A. NO. 535/MUM/2010 (ARISING OUT OF ITA NO. 6162/MUM/2007) ASSESSMENT YEAR-2003-04 LODHA & AGARWAL DEVELOPERS, SHAH & NAHAR IND. ESTATE, OFF. DR. E. MOSES ROAD, WORLI, MUMBAI-400 018 PAN-AABFL 4505E VS. THE ITO 18(2)(3), PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 012 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI CHETAN KARIA RESPONDENT BY: SHRI JITENDRA YADAV O R D E R PER ASHA VIJAYARAGHAVAN (JM) BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEE KS SOME RECTIFICATION OF MISTAKES APPARENT VIDE ITS ORDER D T. 18 TH FEBRUARY, 2010. 2. PARA 5 SHALL SUBSTITUTED AS FOLLOWS: 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED AS FO LLOWS: SINCE THE AREA OF PLOT UNDER PROJECT SHOWED 6678 SQ . MTRS WHICH IS APPROX. 1.65 ACRE, CLAIM U/S. 80IB WAS MAD E IN THE RETURN. THOUGH THE LAND UNDER DEVELOPMENT WAS SO M UCH, SUBSEQUENTLY EXACT SIZE OF PROJECT WAS REDUCED TO L ESS THAN 1 ACRE OF LAND, CLAIM U/S. 80IB CANNOT BE MADE AND ACCORDI NGLY WE HAVE WITHDRAWN THE CLAIM AND PAID THE BALANCE TAXES WIT H PENAL INTEREST APPLICABLE. IT IS REITERATED THAT THE PLO T SIZE WAS MORE THAN 1 ACRE BUT THE AUTHORITIES PASSING THE PROJECT DID NOT TAKE INTO ACCOUNT THE ENTIRE PLOT. IT THEREFORE DID NOT MEET THE REQUIREMENT OF S 80IB. THE WRONG CLAIM WAS NOT THEREFORE DELIB ERATE AND M.A. NO. 535/M/10 2 WILLFUL. WE HAD ALSO PAID THE TAXES THAT BECAME DU E EVEN BEFORE THE ORDER U/S. 143(3) WAS PASSED. IT MAY ALSO BE N OTED THAT ON OUR BEING ASKED TO SUBMIT THE DETAILS WE OURSELVES OBSE RVED THE MISTAKE AND WITHDREW THE CLAIM. UNDER THE CIRCUMST ANCES WE PRAY THAT THE PENALTY PROCEEDINGS INITIATED U/S. 27 1(1) TO BE WITHDRAWN. 6. WE HEARD BOTH THE PARTIES. WE FIND THAT THE ASS ESSEE HAD BONAFIDE CLAIMED RELIEF U/S. 80IB BUT ONCE THEY REA LIZED THE MISTAKE THAT THE TOTAL AREA OF THE PROJECT IS LESS THAN 1 ACRE AND HENCE ELIGIBLE FOR DEDUCTION U/S. 80IB, THE ASSESSE E WITHDREW ITS CLAIM. THOUGH THE AMOUNT OF PENALTY INVOLVED IS V ERY SMALL, THE LD. COUNSEL FOR THE ASSESSEE SHRI CHETAN KARIA PLE ADED THAT THE GRIEVANCE OF THE ASSESSEE IS AGAINST IMPOSITION OF PENALTY U/S. 271(1)(C) ON THE GROUND THAT EXPLANATION GIVEN BY THE ASSESSEE WAS NOT THE BONAFIDE ONE. HOWEVER, TAKING INTO CON SIDERATION THE SMALLNESS OF AMOUNT INVOLVED IN THIS APPEAL, TH E HONBLE BENCH, ON THE AR CONCEDING THE APPEAL AS THE AMOUNT OF PENALTY INVOLVED IS VERY SMALL AND WITHOUT AGREEING TO THE FINDINGS IN ORDERS OF THE LOWER AUTHORITIES, PRONOUNCED IN THE OPEN COURT THAT THE APPEAL IS DISMISSED AND THE ISSUES ARE LEFT UND ECIDED . 3. IN THE RESULT, THE M.A FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 25 TH DAY OF MARCH, 2011 SD/- SD/- (J.SUDHAKAR REDDY ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 25 TH MARCH, 2011 RJ M.A. NO. 535/M/10 3 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR H BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI M.A. NO. 535/M/10 4 DATE INITIALS 1 DRAFT DICTATED ON: 2 . 0 3 .201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 2 .0 3 .2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______