TMI Blog2012 (8) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2869, 2870/M/2011 - - - Dated:- 15-6-2012 - SHRI G.E. VEERABHADRAPPA, AND SHRI S.S.GODARA, JJ. Appellant by: Shri Pravin Varma P.C. Mourya Respondent by: Shri Pradip N Kapasi ORDER PER S.S. GODARA, JM: These two Revenue s appeals arise from order of Ld. CIT (A) dated 16.4.2010 deleting penalty u/s 271(1)(c) of the Act for Assessment Years 2004-05 and 2005-06 respectively. 2. Facts of the case in AY 2004-05 are that in assessment proceedings which were finalized on 31.3.2006 by AO, deduction u/s 80-IB of the Act was allowed to assessee of Rs. 2.23 crores. Thereafter, the AO issued reopening notice and reopened the assessment u/s 147 of the Act. Vide order dated 14.12.2007, AO withdrew the deduction u/s 80-IB(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to prove it as a case of furnishing of inaccurate particulars of income or any continumous intention of the assessee. The CIT (A) while deleting the penalty has also relied on the Hon ble Supreme Court judgment in case of Reliance Petro Chemicals Ltd. 322 ITR 158. 6. Opening his arguments, ld DR before us has submitted that the assessee s conduct in claiming wrong deduction is squarely covered by the penalty provisions of the Act. In this regard, he has placed reliance on penalty order and findings contained therein and prayed that same may be upheld. 7. The ld AR before us has opposed the Revenue s arguments by submitting that in quantum proceedings, the disallowance in question has already been deleted by ld Coordinate Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, lift passage, lift room etc. has to be considered as part and parcel of residential area and not as commercial area. The learned Departmental Representative then contended about the size of plot which is admittedly more than one acre in this case as per his calculation. We are unable to appreciate the view point of the department that the un-built up area. It is obvious that there cannot be 100% construction on any plot. Some area has to be left open as per the plan and construction can be done only as per the specifications approved by the competent authority. By no stretch of imagination can an open area be considered as proportionately relatable to residential as well as commercial area. As the size of the plot in this case is more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .s. 147, the assessee can be allowed deduction u/s 80-IB (10) only to the extent it was disallowed in the present proceedings which amounts to Rs. 2,23,85,571. Insofar as the disallowance of deduction to the tune of Rs. 31,70,650/- is concerned, the same cannot be conferred on the assessee for the reason that it was disallowed in the original assessment order passed u/s 143(3) and no material has been brought to our notice to indicate that such order has been modified in any manner. As the reassessment proceedings are aimed at taxing the income which has escaped assessment, these cannot be taken as a tool for putting the assessee in a better position than in which it was before such proceedings. We, therefore, direct to allow deduction u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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