ABODE BUILDERS & DEVELOPERS P.LTD, MUMBAI v. ITO 9(1)(1), MUMBAI

ITA 531/MUM/2009 | 2003-2004
Pronouncement Date: 09-03-2011 | Result: Allowed

Appeal Details

RSA Number 53119914 RSA 2009
Assessee PAN AADCA2191C
Bench Mumbai
Appeal Number ITA 531/MUM/2009
Duration Of Justice 2 year(s) 1 month(s) 16 day(s)
Appellant ABODE BUILDERS & DEVELOPERS P.LTD, MUMBAI
Respondent ITO 9(1)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 09-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 09-03-2011
Assessment Year 2003-2004
Appeal Filed On 23-01-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT. ASHA VIJAYARAG HAVAN (JM) ITA NO. 531/MUM/2009 ASSESSMENT YEAR- 2003-04 M/S. ABODE BUILDERS & DEVELOPERS PVT. LTD. 114A VEENA BEENA SHOPPING CENTRE BANDRA (W) MUMBAI-400 050 PAN-AADCA 2191C VS. THE ITO - 9(1)(1) AAYAKAR BHAVAN MUMBAI-400 020 (APPELLANT) (RESPONDENT) ITA NO. 128/MUM/2009 ASSESSMENT YEAR- 2003-04 THE ITO - 9(1)(1) AAYAKAR BHAVAN MUMBAI-400 020 VS. M/S. ABODE BUILDERS & DEVELOPERS PVT. LTD. 114A VEENA BEENA SHOPPING CENTRE BANDRA (W) MUMBAI-400 050 PAN-AADCA 2191C (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI DEVESH VASAVADA DEPARTMENT BY: SHRI KANTA NAYAK O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS SET OF APPEALS ONE PREFERRED BY THE ASSESSEE A ND THE OTHER PREFERRED BY THE REVENUE ARE DIRECTED AGAINST THE O RDERS DATED 27.10.2008 PASSED BY THE LD. CIT(A)-IX FOR THE ASSE SSMENT YEAR 2003-04. AS THESE APPEALS WERE HEARD TOGETHER AND INVOLVED C ONNECTED ISSUES BOTH OF THESE APPEALS ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. ITA NOS. 531 & 128/M/09 2 2. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION. THE ASSESSMENT WAS COMPLETED U/S. 143(3) DETERMININ G THE TOTAL INCOME AT RS. 3 49 09 110/- AS AGAINST RETURNED INCOME OF RS. NIL. THE ASSESSEE COMPANY HAD CLAIMED RECEIPT OF RS. 98 97 905/- AS M AINTENANCE CHARGES AND REDUCED THE SAME FROM WIP. THE DETAILS ARE AS UNDER: A RECEIPT FROM ABODE CONSTRUCTION LTD. (INCLUDES EARLIER YEAR CLAIM RS. 75 60 000/- MADE IN THIS YEAR)(ADDITION MADE ON PROTECTIVE BASIS RS. 87 24 000/- B) RECEIPT FROM LUCENT TECHNOLOGIES (STATED AS RENT IN TDS FORM) RS. 47 970/- C) RECEIPT FROM UCO BANK (STATED TO BE PAYMENT TO CONTRACTOR IN TDS) RS. 4 54 050/- D) OTHERS (NO DETAILS GIVEN) RS . 6 71 885/- RS. 98 97 905/- 3. THE QUANTUM APPEAL WAS DECIDED BY THE TRIBUNAL. THE AO INITIATED PENALTY U/S. 271(1)(C). 4. THE LD. CIT(A) WHILE DECIDING THE APPEAL U/S. 27 1(1)(C) HELD AS FOLLOWS: IT MAY BE SEEN THAT ALL THE FACTS AND PARTICULARS OF EXPENSES/DEDUCTION WERE DULY DISCLOSED IN THE RETUR N OF INCOME AND IT IS NOT THE CASE WHERE THE APPELLANT H AS CONCEALED ANY INFORMATION FROM THE DEPARTMENT EXCEP T THE INTEREST INCOME FROM UCO BANK AMOUNTING TO RS. 4 54 050/- AND A SUM OF RS. 6 71 885/- PAYMENT TO CONTRACTOR IN TDS RENT RECEIVED FROM LUCENT TECHNOLOGIES RS. 47 970 ( TOTALING TO RS. 11 73 905/-) WRONGLY CLAIMED AND INCLUDED IN TH E REIMBURSEMENT CHARGES AND WERE NOT OFFERED TO TAX. 5. THE LD. CIT(A) FURTHER HELD AS FOLLOWS: THUS CONSIDERING THE TOTALITY OF THE FACTS I DI RECT THE AO TO RESTRICT THE PENALTY ONLY TO THE EXTENT OF INCOME A MOUNTING TO RS. 11 73 905/- ONLY WHICH WERE NOT OFFERED FOR TAX . FOR THE BALANCE AMOUNT I.E. THE MAINTENANCE CHARGES AMOUNTI NG TO RS. 87 24 000/- PENALTY LEVIED ON SUCH AMOUNT IS H EREBY ITA NOS. 531 & 128/M/09 3 DELETED. THE AO IS THEREFORE DIRECTED TO RE-CALCUL ATE THE PENALTY. 6. AGAINST THE ORDER OF THE LD. CIT(A) PASSED U/S. 271(1)(C) BOTH THE DEPARTMENT IN ITA NO. 128/M/09 AND THE ASSESSEE IN ITA NO. 531/M/09 HAVE PREFERRED AN APPEAL BEFORE US. 7. THE LD. COUNSEL FOR THE ASSESSEE SHRI DEVESH VAS AVADA BROUGHT TO OUR NOTICE THAT THE ORDER OF THE MUMBAI A BENCH I N ASSESSEES OWN CASE WHERE THE QUANTUM APPEAL FOR THE ASSESSMENT YEAR 20 03-04 HAS BEEN DISMISSED. THE RELEVANT PARAGRAPH IS REPRODUCED H EREUNDER: BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT ASSESSEE FOR THESE TWO YEARS ARE MUTATI S MUTANDIS SIMILAR TO ASSESSMENT YEAR 2004-05 IN THE CASE OF M /S. ABODE CONSTRUCTION LTD. (SUPTRA) IN ITA NOS 5609/M/08. F OLLOWING THE VIEW TAKEN HEREINABOVE WE UPHOLD THE IMPUGNED ORDE RS. 8. FOR THE ASSESSMENT YEAR 2004-05 THE TRIBUNAL HA S QUASHED PENALTY HOLDING AS FOLLOWS: COMING TO THE APPEAL OF THE ASSESSEE IT IS NOTED T HAT THE LD. CIT(A) HAS CONFIRMED THE PENALTY ON THE INTEREST IN COME OF RS. 2 27 336/- WHICH IN HIS OPINION WAS NOT OFFERED FOR TAXATION. WE HAVE PERUSED THE COPY OF BALANCE SHEET OF THE ASSES SEE FOR THE YEAR IN QUESTION. SCHEDULE VI-A CONTAINS DETAIL OF CONS TRUCTION AND DEVELOPMENT COST WHICH WAS CAPITALIZED BY THE ASSES SEE. IN SUCH DETAILS THE ASSESSEE HAS SPECIFICALLY CLAIMED DEDU CTION TOWARDS INTEREST RECEIVED ON FDRS AND THE NET AMOUNT WAS CA RRIED TO THE BALANCE SHEET. WE ARE UNABLE TO APPRECIATE AS TO H OW ANY PENALTY CAN BE IMPOSED U/S. 271(1)(C) IN RESPECT OF THE INT EREST WHICH WAS PROMPTLY DISCLOSED IN THE BALANCE SHEET BY WAY OF R EDUCTION FROM THE CONSTRUCTION AND DEVELOPMENT COST AS PER SCHEDU LE IV-A AND THE NET AMOUNT OF WORK IN PROGRESS WAS CARRIED TO THE B ALANCE SHEET. IN OUR CONSIDERED OPINION THE STAND OF THE REVENUE THA T THE PENALTY BE UPHELD ON SUCH INTEREST INCOME CANNOT BE ACCEPTED. IT IS NOT A CASE WHERE THE ASSESSEE COULD BE SAID TO HAVE CONCEALED OR FURNISHED THE INACCURATE PARTICULARS OF HIS INCOME. WE THEREFOR E ORDER FOR THE DELETION OF THE PENALTY. ITA NOS. 531 & 128/M/09 4 9. SINCE THE QUANTUM APPEAL HAS BEEN DISMISSED THE REFORE THE PENALTY APPEAL LIABLE TO BE CANCELLED HAVING NO LE GS TO STAND. 10. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 9 TH DAY OF MARCH 2011 SD/- SD/- ( R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 9 TH MARCH 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR A BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI ITA NOS. 531 & 128/M/09 5 DATE INITIALS 1 DRAFT DICTATED ON: 1 . 0 3 .201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 1 .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: _________ ______