TMI Blog2016 (1) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has also mentioned the area of plot as 3207.20 sq.mtr. which measure to less than one acre. Thus, it appears that the statement of the assessee that plot of area is more than one acre as referred to by the learned Departmental Representative, a bonafide mistake and cannot be termed as furnishing of inaccurate particulars of income. In view of the aforesaid, we are of the opinion that learned Commissioner (Appeals) was justified in deleting the penalty imposed under section 271(1)(c) of the Act. Accordingly, we uphold the order of the learned Commissioner (Appeals). - Decided against revenue - ITA no.3656/Mum./2012 - - - Dated:- 6-11-2015 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER For The Assessee : Shri Harshad S. Vengurlekar For The Revenue : Shri Ajay Singh ORDER PER SAKTIJIT DEY, J.M. The instant appeal by the Revenue against the order dated 19th March 2012, passed by the learned Commissioner (Appeals) 32, Mumbai, deleting the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961 (for short the Act ) by Assessing Officer for the assessment year 2007 08. 2. Briefly stated the facts are, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y observing that the assessee has not fulfilled the basic condition of section 80IB(10) as the plot of land is less than one acre. He also observed that the CBDT has not identified the project. He, therefore, confirmed the disallowance. While doing so, he referred to the decision of the Tribunal in Ramesh Gunshi Dedhia. As it appears, the assessee did not challenge the decision of the first appellate authority by preferring further appeal. Thus, the disallowance of deduction under section 80IB(10) become final as far as the impugned assessment year is concerned. On the basis of the disallowance made, proceedings for imposition of penalty under section 271(1)(c) of the Act was initiated by the Assessing Officer by issuing a show cause notice to the assessee. Of course, he also brought within the purview of the penalty proceedings two other small disallowances made by him with regard to STT payment and interest payment. The Assessing Officer referring to the discussion made while making such disallowance of assessee s claim in the assessment order, observed that the assessee being conscious of the fact that he has not fulfilled the condition of section 80IB(10), still went forward to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the issuance of notification by CBDT is a matter between the State Government and CBDT, the assessee did not have any control over that. However, as per the amendment, slum rehabilitation scheme are exempt from the condition of having the project constructed over a plot of land of more than one acre. The learned Commissioner (Appeals) observed, if the assessee would have waited for the notification of the CBDT, it could not have claimed the deduction for the impugned assessment year. Therefore, assessee had to claim the deduction under section 80IB(10). The learned Commissioner (Appeals) observed, the CBDT only in the notification dated 5th January 2011, clarified that it would apply to projects after 1st April 2011, clarified that it would, and applicable from the assessment year 2005 06. It was observed by the learned Commissioner (Appeals) that as at the time of filing of return of income for the assessment year under consideration, the assessee was under bona fide impression that the conditions of clause (a) and (b) of section 80IB(10) was not applicable to projects developed under slum rehabilitation scheme of Government of Maharashtra it claimed the deduction. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m such deduction. The learned Departmental Representative submitted, as in the return of income itself the assessee has furnished inaccurate particulars while claiming deduction under section 80IB(10), imposition of penalty under section 271(1)(c) was justified. 6. The learned Counsel for the assessee, on the other hand, strongly support the decision of the learned Commissioner (Appeals) submitted, the Assessing Officer has proceeded to impose penalty only for the reason that deduction claimed by the assessee under section 80IB(10) has been disallowed and disallowance was upheld by the first appellate authority which was accepted by the assessee. The learned Counsel for the assessee submitted merely because the assessee has accepted the decision of the first appellate authority as far as disallowance of deduction under section 80IB(10) that will not be a condition precedent for imposing penalty under section 271(1)(c). The learned Counsel for the assessee submitted, the decision taken for not challenging the order of learned Commissioner (Appeals) in quantum proceedings, is for various reasons and for avoiding protracted litigation. However, that cannot be used against the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi High Court in CIT v/s CHD Developers Ltd., [2014] 362 ITR 177 (Del.) and the decision of the Hon'ble Jurisdictional High Court in CIT v/s Sai Krupa Developers, ITA no.1540/2012. Thus, it was submitted by the learned Counsel assessee even on merits also, assessee is eligible to avail deduction under section 80IB(10) notwithstanding the fact that it opted for not contesting the disallowance under section 80IB(10) to avoid litigation with the Department. It was submitted, the decisions relied upon would show that it is a debatable issue on which more than one view is possible, hence, assessee s claim of deduction under bona fide impression will not amount to furnishing of inaccurate particulars of income. He, therefore, submitted that penalty has been rightly deleted by the first appellate authority. 7. We have considered the submissions of the parties and perused the material available on record. As could be seen, the major addition on which penalty has been imposed is on account of disallowance of assessee s claim of deduction under section 80IB(10). It is further evident that the Assessing Officer has made the disallowance by specifically referring to non fulfillment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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