Sanand Properties Pvt. ltd.,, Pune v. Assistant Commissioner of Income-tax,,

ITA 495/PUN/2015 | 2008-2009
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 49524514 RSA 2015
Assessee PAN AAHCS3227K
Bench Pune
Appeal Number ITA 495/PUN/2015
Duration Of Justice 2 year(s) 7 month(s) 10 day(s)
Appellant Sanand Properties Pvt. ltd.,, Pune
Respondent Assistant Commissioner of Income-tax,,
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-11-2017
Date Of Final Hearing 12-10-2017
Next Hearing Date 12-10-2017
Assessment Year 2008-2009
Appeal Filed On 20-04-2015
Judgment Text
] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE MS. SUSHMA CHOWLA JM AND SHRI ANIL CHATURVEDI AM . / ITA NO.495/PUN/2015 / ASSESSMENT YEAR : 2008-09 SANAND PROPERTIES PVT. LTD. S.NO.177/2 DESAI HOUSE DHOLE PATIL ROAD PUNE 411 001. PAN : AAHCS3227K. . / APPELLANT V/S ASST.COMMISSIONER OF INCOME TAX CIRCLE 6 PUNE. . / RESPONDENT ASSESSEE BY : SMT. DEEPA KHARE. REVENUE BY : SHRI ACHAL SHARMA ADDL.CIT. / ORDER PER ANIL CHATURVEDI AM : 1. THIS APPEAL OF THE ASSESSEE IS EMANATING OUT OF THE OR DER OF COMMISSIONER OF INCOME TAX (A) 4 PUNE DATED 09.02.2015 FOR THE ASSESSMENT YEAR 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUS INESS OF REAL ESTATE AND DEVELOPMENT. ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2008-09 ON 29.09.2008 DECLARING TOTAL INCOME AT / DATE OF HEARING : 12.10.2017 / DATE OF PRONOUNCEMENT: 30.11.2017 2 RS.20 33 198/-. ASSESSEE THEREAFTER REVISED ITS RETURN O F INCOME ON 03.10.2008 REVISING THE TAXABLE INCOME TO RS.19 14 861/-. TH EREAFTER THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.20.07.2010 AND THE TOTAL TAXABLE INCOME WAS DETERMINED AT RS.19 14 861/- AND TAXABLE INCOME U/S 115JB WAS DETERMINED AT RS.14 42 28 450/- BY INCLUDING THE SHARE OF IN COME FROM AOP (FORTALEZA DEVELOPERS). ON THE ADDITION OF RS.14 18 52 156/- MADE TO THE BOOK PROFITS ON ACCOUNT OF INCOME FROM AOP AO VIDE ORDER DT.22.03.2013 HELD THAT ASSESSEE HAD CONCEALED PARTICULARS OF INCOME U/S 271(1)(C) OF THE ACT AND ACCORDING LY LEVIED PENALTY OF RS.4 25 55 650/-. THEREAFTER AO PASSED ORDER U /S 154 OF THE ACT ON 29.04.2013 AND REVISED THE PENALTY U/S 271(1)(C ) OF THE ACT AT RS.1 41 85 220/-. AGGRIEVED BY THE ORDER OF AO ASSESS EE CARRIED THE MATTER BEFORE LD.CIT(A) WHO VIDE ORDER DT.09.02.2015 D ISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF L D.CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FO LLOWING GROUNDS : 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY OF RS.1 41 85 220/- LEVIED BY THE ASSESSIN G OFFICER U/S 271(1)(C) OF THE I.T. ACT. 2. THAT THE LEARNED CIT(A) GRIEVOUSLY ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE MERITS OF THE APPELLANTS CONTENTI ON THAT THE APPELLANTS CLAIM IN REGARD TO EXCLUSION OF ITS SHARE OF PROFI T RECEIVED FROM THE AOP OF M/S. FORTALEZA DEVELOPERS FROM THE LEVY OF MAT U /S 115JB HAVING BEEN BONAFIDELY DISCLOSED UNDER ITS RETURN OF INCOM E AND THE SAME BEING A CLAIM IN RESPECT OF WHICH TWO VIEWS WERE POSSIBLE IN LAW THE IMPOSITION OF THE PENALTY FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME WAS CLEARLY NOT JU STIFIED. 3. BEFORE US LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT IN THE RETURN O F INCOME FILED BY THE ASSESSEE A NOTE WAS PUT WHEREIN IT WAS STATED THAT THE SHARE OF PROFIT FROM AOP WAS EXCLUDED FOR THE COMPUTATION OF BOOK P ROFIT U/S 3 115JB IN VIEW OF THE DECISION OF MUMBAI TRIBUNAL IN THE C ASE OF GOLDGEREJ FINANCE PVT. LTD. SHE FURTHER SUBMITTED THAT T HEREAFTER SURVEY ACTION U/S 133A OF THE ACT WAS CARRIED OUT ON 2 3.10.2010 AND THE ASSESSMENT WAS RE-OPENED U/S 147 OF THE ACT SO A S TO ASSESS THE INCOME OF FORTALEZA DEVELOPERS IN INDIVIDUAL HANDS AND NOT A S AOP. AO THEREAFTER PASSED ORDER ON 30.12.2011 AND ASSESSED THE INCOME AT RS.14 53 90 740/- WHEREIN HE TREATED THE INCOME OF RS.14 18 5 2 156/- AS THE BUSINESS INCOME OF THE INDIVIDUAL MEMBER AND NOT AS SHARE OF PROFIT. AGGRIEVED BY THE ORDER OF AO ASSESSEE PREFERRED APPEAL BEFORE LD.CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEV ED BY THE ORDER OF LD.CIT(A) ASSESSEE CARRIED THE MATTER BEFORE TRIB UNAL AND THE TRIBUNAL VIDE ORDER DT.21.03.2014 DECIDED THE APPEAL IN FAVOU R OF THE ASSESSEE ACCEPTING THE AMOUNT RECEIVED AS BEING SHARE OF PROFIT FROM AOP. SHE FURTHER SUBMITTED THAT AO HAS PASSED PENALTY ORDER U/S 271(1)(C) OF THE ACT AND LEVIED PENALTY ON THE BASIS OF ORIGINA L ASSESSED INCOME AND NOT ON THE INCOME ASSESSED U/S 147 OF THE ACT. 4. LD.A.R. FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT C ONCEALED ANY MATERIAL FACTS AND THEREFORE NOT LIABLE FOR PENALTY MORE SO WHEN THE ADDITION HAS BEEN MADE U/S 115JB OF THE ACT. SHE A LSO PLACED RELIANCE ON THE DECISION IN THE CASE OF INDOSWE ENGINEERS PVT. LIMITED IN ITA NO.120/PUN/2015 DT.12.07.2017 (SHE ALSO PLACED ON RE CORD THE COPY OF THE AFORESAID DECISION). SHE FURTHER POINTING TO THE ORDERS PASSED BY THE AO SUBMITTED THAT WHILE PASSING THE ASSES SMENT ORDER AO HAS NOT RECORDED ANY SATISFACTION FOR LEVY OF PENALTY BUT WHILE PASSING THE PENALTY ORDER U/S 271(1)(C) OF THE ACT THE AO HAS LEVIED PENALTY FOR CONCEALMENT OF INCOME AS WELL AS FOR FURNISHING INA CCURATE PARTICULARS OF INCOME. SHE RELYING ON THE DECISION OF HON BLE BOMBAY 4 HIGH COURT IN THE CASE OF CIT VS. SAMSON PERINCHERY (ITA NO.1154 OF 2014 ORDER DT.05.01.2017) SUBMITTED THAT WHEN INITIATION OF P ENALTY IS FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND PENALT Y WAS LEVIED ON CONCEALMENT OF INCOME THEN IN THE ABSENCE OF PR OPER SHOW CAUSE NOTICE TO ASSESSEE PENALTY U/S 271(1)(C) CANNOT BE LEVIED. SHE THEREFORE SUBMITTED THAT PENALTY LEVIED BY AO BE DELETED. LD.D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPEC T TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IN THE PRESENT CASE TH E AO LEVIED PENALTY AT RS.4 25 55 650/- ON THE ASSESSED BOOK PROFIT COMPUTED U/S 115JB AS PER THE ASSESSMENT ORDER . THE PERUSAL OF ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT REVEALS THAT AO HA D INITIATED PENALTY PROCEEDING BUT NO SATISFACTION WAS RECORDED WHILE PASSING THE ASSESSMENT ORDER. THEREAFTER IN THE PENALTY ORDER PASS ED U/S 271(1)(C) OF THE ACT AO HELD THAT ASSESSEE HAD FURNISHED INACCURA TE PARTICULARS OF INCOME AND HAD CONCEALED THE INCOME U/S 271(1)(C) OF THE ACT. IT IS A SETTLED LAW THAT WHILE LEVYING PENALTY FOR CONCEALMENT TH E AO HAS TO RECORD SATISFACTION AND THEREAFTER COME TO A FINDING IN RES PECT OF ONE OF THE LIMBS WHICH IS SPECIFIED UNDER SECTION 271(1)(C) OF THE ACT. THE FIRST STEP IS TO RECORD SATISFACTION WHILE COMPLETING THE ASS ESSMENT AS TO WHETHER THE ASSESSEE HAD CONCEALED ITS INCOME OR FUR NISHED INACCURATE PARTICULARS OF INCOME. THEREAFTER NOTICE U/S 27 4 READ WITH SECTION 271(1)(C) OF THE ACT IS TO BE ISSUED TO THE ASSES SEE. THE ASSESSING OFFICER THEREAFTER HAS TO LEVY PENALTY UNDER SEC TION 271(1)(C) OF THE ACT FOR NON-SATISFACTION OF EITHER OF THE LIMBS. WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER HAS TO COME TO A FIN DING AS TO 5 WHETHER THE ASSESSEE HAS CONCEALED ITS INCOME OR FURNISH ED INACCURATE PARTICULARS OF INCOME. THE HONBLE BOMBAY HIGH COURT IN CIT VS. SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 WITH OTHER ITA NOS.953 OF 2014 1097 OF 2014 AND 1226 OF 2014 VIDE JUDGM ENT DATED 05.01.2017 HELD THAT WHERE INITIATION OF PENALTY IS ONE LIMB A ND THE LEVY OF PENALTY IS ON OTHER LIMB THEN IN THE ABSENCE OF PRO PER SHOW CAUSE NOTICE TO THE ASSESSEE THERE IS NO MERIT IN LEVY OF PENALTY. 6. IN THE PRESENT CASE AS NOTED HEREINABOVE IT IS SEEN THAT THE AO HAS NOT RECORDED ANY SATISFACTION FOR LEVY OF PENALTY IN TH E ASSESSMENT ORDER BUT HAD LEVIED PENALTY ON BOTH THE LIMBS I.E. FOR CON CEALMENT OF INCOME AND FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME WHILE PASSING THE PENALTY ORDER. CONSIDERING THE AFORESAID FACTS IN THE LIGHT OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F SAMSON PERINCHERY (SUPRA) WE ARE OF THE VIEW THAT IN THE PRESENT CASE THE BA SIC CONDITION FOR LEVY OF PENALTY HAS NOT BEEN FULFILLED AND THAT THE PENALTY ORDER SUFFERS FROM NON-EXERCISING OF JURISDICTION POWER OF AO AND THEREFORE PENALTY ORDER CANNOT BE UPHELD. WE ACCORDING LY SET ASIDE THE PENALTY ORDER PASSED BY AO. THUS THE GROUND OF ASSESSEE IS ALLOWED. 7. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THE 30 TH DAY OF NOVEMBER 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 30 TH NOVEMBER 2017. YAMINI 6 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-4 PUNE. PR.CIT-3 PUNE. '#$ %%&' ( &' / DR ITAT A PUNE; $+ - / GUARD FILE. / BY ORDER // TRUE COPY // ./0 %1 &2 / SR. PRIVATE SECRETARY ( &' / ITAT PUNE.