ACIT 25(2), MUMBAI v. SSHREE SWASTIK DEVELOPERS, MUMBAI

ITA 94/MUM/2010 | 2006-2007
Pronouncement Date: 22-07-2011 | Result: Dismissed

Appeal Details

RSA Number 9419914 RSA 2010
Assessee PAN AAVFS8876P
Bench Mumbai
Appeal Number ITA 94/MUM/2010
Duration Of Justice 1 year(s) 6 month(s) 15 day(s)
Appellant ACIT 25(2), MUMBAI
Respondent SSHREE SWASTIK DEVELOPERS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 22-07-2011
Date Of Final Hearing 13-07-2011
Next Hearing Date 13-07-2011
Assessment Year 2006-2007
Appeal Filed On 06-01-2010
Judgment Text
1 ITA NO. 2943/MUM/2009 (ASST YEAR 2005-06) ITA NO.94/MUM/2010 (ASST YEAR 2006-07) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI PRAMOD KUMAR AM & SHRI VIJAY PAL RAO JM ITA NO. 2943/MUM/2009 -(ASST YEAR 2005-06) ITA NO.94/MUM/2010 - (ASST YEAR 2006-07) THE ASST COMMR OF INCOME TAX 25(2) MUMBAI VS SHREE SWASTIK DEVELOPERS 3 GURU PRASAD CARTER ROAD NO.3 BORIVALIE(E) MUMBAI 62 (APPELLANT) (RESPONDENT) PAN NO. AAVFS8876P ASSESSEE BY SHRI VIPUL B JOSHI REVENUE BY SHRI G P TRIVEDI PER VIJAY PAL RAO JM THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST S EPARATE ORDERS DATED 27.2.2009 AND 12.10.2009 OF THE CIT(A) ARISING FRO M THE PENALTY ORDER U/S 271(1) (C) OF THE I T ACT FOR THE AYS 2005-06 AND 2006-07 RESPECT IVELY. 2 THE COMMON GROUND RAISED BY THE REVENUE IN THESE APPEALS IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD CIT(A) ERRED IN DELETING THE PENALTY LEVIED U/S 271(1)( C) EVEN THE ASSESSEE HAS NOT FULFILLED BASIC CONDITIONS MENTIONED IN SEC 80B(10) AND THESE FACTS HAVE BEEN REVEALED ONLY AFTER PROCEEDING U/S 133A OF THE I T AC T. 3 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF T HE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFI CER DISALLOWED THE CLAIM OF DEDUCTION U/S 80IB (10) ON THE BASIS OF STATEMENT O F THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY ACTION U/S 133A CONDUCTED ON 1 3.9.2007. THE SOLE BASIS OF THE 2 ITA NO. 2943/MUM/2009 (ASST YEAR 2005-06) ITA NO.94/MUM/2010 (ASST YEAR 2006-07) DISALLOWANCE OF DEDUCTION U/S 80IB(10) IS THAT THE PROJECT WHICH WAS TO BE COMPLETED BY 31.3.2008 CANNOT BE COMPLETED AS STATE D BY THE ASSESSEE IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY. 4 WE HAVE HEARD THE LD DR AND LD AR OF THE ASSESSEE AND CONSIDERED THE RELEVANT RECORDS. AT THE OUTSET WE NOTE THAT THE RETURN OF INCOME FOR THE AY 2005-06 WAS FILED ON 31.10.2005 AND FOR THE AY 2006-07 WAS FILED ON 31.10.2006. THUS IT IS CLEAR THAT ON THE DATE OF FILING OF THE RETURN FOR THE RE SPECTIVELY ASSESSMENT YEARS IT COULD NOT BE ASCERTAINED WHETHER THE PROJECT UNDERTAKEN B Y THE ASSESSEE COULD BE COMPLETED BY 31.3.2008 OR NOT. THE CLAIM OF THE ASS ESSEE FOR DEDUCTION U/S 80IB ON THE AMOUNT RECEIVED IS FROM THE UNDERGOING PROJECT. EVEN THE STATEMENT RECORDED ON 30.9.2007 WHEREBY THE ASSESSEE WITHDRAWN THE CL AIM OF DEDUCTION U/S 80IB(10) IT IS TOO IMMATURE TO CONCLUDE THAT THE PROJECT COULD NOT BE COMPLETED BY 31.3.2008. IN VIEW OF THIS UNDISPUTED FACT IT CANNOT BE INFER RED THAT THE ASSESSEE MADE A BOGUS OR ABSOLUTELY INCORRECT CLAIM OF DEDUCTION U/S 80IB (10) AT THE TIME OF FILING OF THE RETURN. AT THE TIME OF MAKING THE CLAIM U/S 80IB(1 0) IT COULD NOT BE FORESEEN THAT THE PROJECT IS NOT LIKELY TO BE COMPLETED BEFORE 31 .3.2008. THEREFORE WE ARE OF THE VIEW THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY AND ACCORDINGLY WE DO NOT SEE ANY REASON TO INTERFERE WITH THE FINDINGS OF THE CIT(A) IN DELETING THE PENALTY. 5 IN THE RESULT THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THE 22 ND DAY OF JULY 2011. SD/- SD/- ( PRAMOD KUMAR ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED:22 ND JULY 2011 RAJ* 3 ITA NO. 2943/MUM/2009 (ASST YEAR 2005-06) ITA NO.94/MUM/2010 (ASST YEAR 2006-07) COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI