M/s. Fortune Associates, Bhopal v. The ITO 1(2), Bhopal

ITA 844/Ind/2018 | 2007-2008
Pronouncement Date: 28-11-2019 | Result: Allowed

Appeal Details

RSA Number 84422714 RSA 2018
Assessee PAN AABFF3398F
Bench Indore
Appeal Number ITA 844/Ind/2018
Duration Of Justice 1 year(s) 1 month(s) 2 day(s)
Appellant M/s. Fortune Associates, Bhopal
Respondent The ITO 1(2), Bhopal
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 28-11-2019
Last Hearing Date 01-07-2019
First Hearing Date 01-07-2019
Assessment Year 2007-2008
Appeal Filed On 26-10-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI KUL BHARAT JUDICIAL MEMBER AND SHRI MANISH BORAD ACCOUNTANT MEMBER ITA NOS.844 & 845/IND/2018 ASSESSMENT YEARS: 2007-08 & 2008-09 M/S FORTUNE ASSOCIATES 157 ZONE-I M.P. NAGAR BHOPAL / VS. INCOME TAX OFFICER -1(2) BHOPAL ( APPELLANT ) ( RE VENUE ) PAN: AABFF3398F APPELLANT BY SHRI ASHISH GOYAL & SHRI N.D. PAT WA ADVS. RE VENUE BY SHRI K.G. GOYAL SR. DR DATE OF HEARING: 26.11.2019 DATE OF PRONOUNCEMENT: 28 .11.2019 / O R D E R PER MANISH BORAD A.M: THESE APPEALS AT THE INSTANCE OF ASSESSEE PERTAININ G TO A.YS. 2008-09 & 2009-10 ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX-(APPEALS)-1 BHOPAL (IN SHORT CIT) DATED 14.09.2018 WHICH IS ARISING OUT OF THE ORDER U/S 27 1(1)(C) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT ) FRAMED ON 05.03.2014 BY ITO-1(2) BHOPAL. M/S FORTUNE ASSOCIATES ITANOS.844 & 845/IND/2018 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL IN ITANO.844/IND/2018 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE: - 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ORDER OF PENALTY WHICH BAD IN LAW IS VOID-AB-INITIO BARRED BY LIMITATION ILLEGAL CONTRARY TO THE FACTS AND CIRCU MSTANCES OF THE CASE LIABLE TO BE ANNULLED. 2. THE LD. CIT(A) DID NOT PROVIDE PROPER AND MEANINGFU L OPPORTUNITY OF BEING HEARD AND THEREFORE THE ORDER PASSED BY THE LD. CIT(A) DESERVES TO BE SET ASIDE. 3. THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS.10 00 000/- U/S 271(1)(C). 4. THAT THE APPELLANT NEITHER CONCEALED ANY INCOME NOR FURNISHED ANY INACCURATE PARTICULARS THEREOF. THERE FORE HE COULD NOT BE LIABLE FOR PENALTY. THE SAME MAY PLEAS E BE CANCELLED. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL IN ITANO.845/IND/2018 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE: - 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING T HE ORDER OF PENALTY WHICH BAD IN LAW IS VOID-AB-INITIO BARRE D BY LIMITATION ILLEGAL CONTRARY TO THE FACTS AND CIRCU MSTANCES OF THE CASE LIABLE TO BE ANNULLED. 2. THE LD. CIT(A) DID NOT PROVIDE PROPER AND MEANIN GFUL OPPORTUNITY OF BEING HEARD AND THEREFORE THE ORDER PASSED BY THE LD. CIT(A) DESERVES TO BE SET ASIDE. 3. THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY O F RS.13 00 000/- U/S 271(1)(C). 4. THAT THE APPELLANT NEITHER CONCEALED ANY INCOME NOR FURNISHED ANY INACCURATE PARTICULARS THEREOF. THERE FORE HE COULD NOT BE LIABLE FOR PENALTY. THE SAME MAY PLEAS E BE CANCELLED. M/S FORTUNE ASSOCIATES ITANOS.844 & 845/IND/2018 3 3. AS THE ISSUES RAISED IN BOTH APPEALS ARE COMMON BOTH WERE HEARD TOGETHER AND THEREFORE ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. 4. FROM PERUSAL OF THE GROUNDS WE FIND THAT SOLE GR IEVANCE IN BOTH THESE APPEALS FOR A.YS. 2007-08 & 2008-09 IS AGAINS T THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AT RS.10 00 000/- & RS.13 00 000/- . COMMON FACTS IN BOTH THESE APPEALS ARE THAT ASSES SEES CLAIM OF DEDUCTION U/S 80IB(10) WAS DENIED AND PENALTY PROCE EDINGS WERE INITIATED AND FINALLY LEVIED BY THE LD. AO AND ALSO CONFIRMED BY LD. CIT(A). 5. NOW ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL FO R BOTH ASSESSMENT YEARS. 6. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE QUANTUM ISSUE FOR BOTH THE ASSESSMENT YEARS IS PEND ING BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT AND THE ISSUE HAS BEEN ADMITTED AS SUBSTANTIAL QUESTION OF LAW . IN THE SIMILAR SET OFF FACTS IN ASSESSEES OWN CASE FOR A.Y. 2009-10 HON'BLE TRIBU NAL VIDE ITS ORDER DATED 17.10.2019 IN ITANO.715/IND/2018 DELETE D THE PENALTY LEVIED U/S 271(1) OF THE ACT RELYING ON VARIOUS JU DICIAL PRONOUNCEMENTS. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTED THE ORDERS OF BOTH THE LOWER AUTHORITIES BUT COULD NOT CONTROVERT THE M/S FORTUNE ASSOCIATES ITANOS.844 & 845/IND/2018 4 FACT THAT THE ISSUE STANDS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH IN ASSESSEES OWN CASE VIDE ITA NO.715/IND/2018 DATED 17.10.2019. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US AND CAREFULLY GONE THROUGH JUDGMENT REFER RED AND RELIED BY THE LD. COUNSEL FOR THE ASSESSEE. THE ASSESSEE H AS CHALLENGED THE LEVY OF PENALTY U/S 271(1)(C) AT RS.10 00 000/ - & RS.13 00 000/- FOR A.YS. 2007-08 & 2008-09. 9. WE FIND THAT THE SIMILAR ISSUE CAME UP BEFORE US FOR ADJUDICATION IN ASSESSEES OWN CASE FOR THE A.Y. 2009-10 WHEREIN ALSO THE QUANTUM ISSUE ON WHICH PENALTY HAS BEEN LEVIED IS ADMITTED AS SUBSTANTIAL QUESTION OF LAW BY HON'BLE JURISDICTIO NAL HIGH COURT AND WE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOR A.Y. 2009-10 AND DELETED THE PENALTY OBSERVING AS FOLLOWS:- 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. WE OBSERVE THAT IN THE INSTANT CA SE THE ASSESSEE WAS DENIED BENEFIT U/S 80IB(10) OF THE ACT . LD. AO TREATED THE ASSESSEE AS CONTRACTOR AND NOT AS A BUI LDER. IN THE PAST ALSO ASSESSEE HAD BEEN DENIED BENEFIT. QUANTUM ISSUES ARE PENDING BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. 9. IT HAS BEEN CONSISTENTLY HELD BY VARIOUS HON'BLE COURTS THAT IF THE QUANTUM ISSUE IS PENDING BEFORE HON'BLE HIGH C OURT & APEX COURT WHICH SHOWS THAT THERE IS A SUBSTANTIAL QUESTION OF LAW AND THE ISSUE IS DEBATABLE WHICH MAY BE DECIDED IN EITHER WAY THEN PENALTY IS NOT LEVIABLE U/S 271(1)(C) OF T HE ACT. M/S FORTUNE ASSOCIATES ITANOS.844 & 845/IND/2018 5 10.THE ASSESSEES CASE IS ALSO SIMILAR BECAUSE IT H AD MADE A CLAIM BELIEVING IT TO BE A CORRECT CLAIM BUT THE RE VENUE AUTHORITIES DENIED THE CLAIM AND THIS QUESTION OF L AW IS NOW PENDING BEFORE HON'BLE JURISDICTIONAL HIGH COURT. 11. HON'BLE BOMBAY HIGH COURT IN THE CASE OF NAYAN BUILDERS AND DEVELOPERS IN ITA NO.415 OF 2012 DISMISSED THE DEPARTMENTS APPEAL AND UPHELD THE TRIBUNALS ORDER OF DELETING PENALTY ON THE GROUND THAT WHEN THE HIGH COURT ADMI TS SUBSTANTIAL QUESTION OF LAW ON AN ADDITION IT BECO MES APPARENT THAT THE ADDITION IS CERTAINLY DEBATABLE AND IN SUC H CIRCUMSTANCES PENALTY CANNOT BE LEVIED. 12. COORDINATE BENCH INDORE IN THE CASE OF SHRI YU GAL KISHOR JAJOO VS. DCIT (ITANO.271/IND/2011) HAS HELD THAT WHEN THE HON'BLE HIGH COURT HAS ADMITTED THE APPEAL TO DECID E THE SUBSTANTIAL QUESTION OF LAW NO PENALTY CAN BE IMPO SED. 13. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE WHEREIN THE PEN ALTY HAS BEEN LEVIED FOR DENIAL OF DEDUCTION U/S 80IB(10) OF THE ACT AND IN THE PRECEDING YEARS THE ASSESSEE HAS CARRIED THE ISSUE BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT WHEREIN THE I SSUE HAS BEEN ADMITTED HAVING SUBSTANTIAL QUESTION OF LAW W E ARE OF THE VIEW THAT THE ASSESSEE SHOULD NOT BE VISITED WITH T HE PENALTY U/S 271(1)(C) OF THE ACT WHICH HAS BEEN LEVIED MERE LY ON A TECHNICAL GROUND AND WITHOUT FINDING ANY MISTAKE IN THE DETAILS FILED BY THE ASSESSEE IN THE RETURN OF INCOME. ACCO RDINGLY PENALTY OF RS.2 00 000/- LEVIED U/S 271(1)(C) OF TH E ACT STANDS DELETED. 10. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND IN VIEW OF THE FACT THAT THE ISSUE RAISED IN IN STANT APPEAL IS SQUARELY COVERED BY OUR OWN DECISION IN ITANO.715/I ND/2019 DATED 17.10.2019 IN ASSESSEES OWN CASE FOR A.Y. 2009-10 ARE INCLINED TO DELETE THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT AT RS.10 00 000/- M/S FORTUNE ASSOCIATES ITANOS.844 & 845/IND/2018 6 & RS.13 00 000/- FOR A.YS. 2007-08 & 2008-09. WE AC CORDINGLY SET ASIDE THE FINDING OF LD. CIT(A) AND ALLOW THE GROUN DS OF APPEAL RAISED BY THE ASSESSEE FOR A.YS. 2007-08 & 2008-09. 11. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28.11.2 019. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 28/10/2019 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR