TMI Blog2013 (9) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts [2010 (3) TMI 80 - SUPREME COURT] - thus the orders passed by the Commissioner (Appeals) deleting the penalty levied under section 271(1)(c) confirmed - Decided against Revenue. - ITA no. 331/Mum./2011, ITA no. 332/Mum./2011, ITA no. 333/Mum./2011, ITA no. 334/Mum./2011, ITA no. 335/Mum./2011, ITA no. 336/Mum./2011 - - - Dated:- 26-6-2013 - Shri B. Ramakotaiah And Shri Amit Shukla,JJ. For the Petitioner : Mr. Mohit Jain For the Respondent : Mr. Anuj M. Kisnadwala a/w Mr. Karan Lala M/s. Thakur Mhatre ORDER Per Bench By way of these appeals, the Revenue has challenged the consolidated impugned orders of even date 16th October 2010, passed by the learned Commissioner (Appeals)-XXXVIII, Mumbai, in relation to the penalty order passed under section 271(1)(c) of the Income Tax Act, 1961 (for short "the Act"), for the assessment years 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09 respectively. Since all these appeals involve common issue, except variation in figures, which are arising out of identical set of facts and circumstances, therefore, as a matter of convenience, these appeals were heard together and are being disposed off by way of this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn sub-contracted to the parties and, hence, it was a developer of infrastructure facilities. The Assessing Officer disallowed the claim on the ground that the project was awarded to the assessee as a contractor and deduction under section 80IA will not be available in case of works contract because in view of the Explanation inserted below sub-section 13 of section 80IA by the Finance Act 2007, with retrospective effect from 1st April 2000 which envisages that nothing contained in this sub-section (4) shall apply to the person who executes works contract. Relying upon the decision of Special Bench of the Tribunal in B.T. Patil Sons, wherein it was held that benefit of section 80IA will not apply to a person who execute the works contract w.e.f. 1st April 2000 in view of this amendment the Assessing Officer ,accordingly, disallowed the claim of the assessee. 5. In the penalty proceedings, the assessee submitted that its case was covered by the decision of Jaipur Bench of the Tribunal in Om Metals Infrastructure Projects P. Ltd. v/s CIT, wherein after considering the legislative intention of newly inserted Explanation will not be applicable to the sub-contractor who works for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g regard to these factual arid legal aspects of the case I consider that there is a merit in the grounds of appeal raised by the appellant. The detailed written submissions made in support of the grounds of appeal have further supported the grounds of appeal and the stand of the appellant that the claims of deduction made under section 80 IA of the I T act do not amount to concealment of income or furnishing of inaccurate particular s of income as intended under section 271 (1) (C) of the I T act. The decision of the Honorable Supreme Court CIT, Ahmadabad Vs. Reliance Petroproducts Pvt Ltd (189 Taxmann 322) is applicable to the facts of the case. As held by the Honorable Supreme Court, disallowance of certain claims of expenditure made in the returns of income, do not constitute concealment for_ the purpose of levy of penalty. In the case of the appellant the claims for deduction made in section 80 IA of the income tax act are found to be debatable. The facts as brought out in the assessment orders as well as in the penalty orders in respect of the appellant do not establish any concealment of income or furnishing of inaccurate particulars which has to form the basis for levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or AY. 2007- 2008 in ITA No. 911/JP/2010 dated 5.8.2011. 3. GVPR Engineering vs. ACIT for AYs. 2004-2005 to 2008- 2009 in ITA Nos. 1482 to 1485/Hyd/2011 dated 29.2.2012. 4. Laxmi Civil Engg. P. Ltd. vs. Addl. CIT for AYs. 2003-04 to 2006-2007 in ITA Nos. 766 254/PN/08, 431 435/PN/07 dated 8.6.2011. In fact on strength of above decision claim of appellant, even on merit (in quantum proceedings) is valid and sustainable. b) In the present case, the AO has levied penalty us 271(1)(c) of the Act. In this regard, it is humbly submitted that the assessee company was under a bonafide belief that it is eligible for deduction u/s 80-IA of the Act. Moreover, from the decisions cited above, it is clearly evident that the said issue is a highly debatable one. It is well settled law that no penalty u/s 271(1)(c) can be levied when the issue is a debatable one. Your Honours, kind attention is invited to the decision of the Hon'ble Supreme Court in thecae of CIT vs. Reliance Petroproducts (322 ITR 158) in which it was held as under (Head Note): "A mere making of claim, which is not sustainable in law, by itself, will not amount to furnishing accurate particulars regarding the income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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