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TMI Blog2016 (10) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous and prejudicial to the interest of interest of Revenue directed the AO to pass assessment order denovo. The assessment u/s 143(3) r.w.s.263 of the Act completed on 31.12.2009 determining the total income of Rs. 14,88,910/-. The penalty proceedings under section 271(1)(c) of the Act were initialed for the disallowance of deduction claimed u/s 80IB(10) of Rs. 14,84,029/-. During the course of setting aside assessment proceedings, the AO observed that the approval in respect of the housing project was obtained more than once and in that case, when the project approved was taken more than once then the housing project would be deemed to have been approved on the date on which the building plan was first approved by the local authority and thus held that the date of commencement of project was 10.1.1996 and therefore, denied deduction u/s 80IB(10) of Rule 18BBB for the reasons that the assessee has not fulfilled the condition as provided in the section 80IB(10) of the Act. The assessee was issued show cause notice which was replied by the assessee vide letter dated NIL received in the office on 25.3.2013 which was reproduced in para 4 of the penalty order in which the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Despite the clear provisions of law the appellant has made the claim and therefore as stated by the AO, it s submissions that it was a claim bonafide made, rings hollow, It is not as though two views were possible, in the instant case of the appellant, on facts there is only one view possible, the view that the appellant is not entitled to deduction under section 80IB(10). In the circumstances, the appellant cannot equate the claim with making a wrong claim; in fact in the appellant's case it is a false claim which has been made and but for verification on the part of the AO, the claim would have got allowed. As held by the Bombay High Court in the case of Jyoti Laxman Konkar V/s CIT (2007) 292 ITR 163 the question whether there is concealment of income or not has to be decided with reference to the facts of a given case and the fact finding authority under the Act having come to the conclusion that in the facts of the case, the assessee has concealed income with a view to avoid the payment of tax, the imposition of penalty was valid. As regards to the contention/additional ground raised that the order of penalty is void abinitio, for the reason that the order has been passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made and that too by wrong appreciation of facts of the assessee's case. The ld. AR submitted that the project in question was initially started in the year 1996 for which the commencement certificate was obtained on 10.1.1996 which was before the date 1.10.1998 and this was the sole reason for rejection of claim of the assessee u/s 80IB(10) of the Act by relying on the Rule 18BBB of the Rules that the conditions were not fulfilled for claiming deduction whereas as a matter of fact, the assessee acquired the development of right of the project vide agreement dated 28.4.1999 and obtained the fresh certificate of commencement on 11.07.2000 and thereafter the project was completed accordingly. Therefore the deduction under section 80IB(10) rightly claimed by the assessee. It was also submitted before us that where approval for housing project was obtained more once then the approval/commencement which was obtained certificate 2nd time should be taken for the purpose of deciding whether the assessee would be entitled to the claim u/s 80IB(10) i.e. whereas first date when the approval was granted for the first time was taken by the AO for the purpose of determining the eligibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r subsequent approval/commencement certificate shall be considered for the purpose of determining the claim of the assessee under section 80IB(10) of the Act. The another plea of the ld.AR that the claim was duly certified by the Chartered Account in Form No. 10CCB r.w.section 80IB(10) and rule 18BBB of the Rules. This argument of the assessee finds force from the decision rendered in the case of Ashray Premises (P.) Ltd.(supra) in which it has been held that if the approval of project is taken two times then subsequent and second approval shall be considered for the purpose of determining the claim u/s 80IB(10). 6. In our opinion, for mere making of claim which is not acceptable to the revenue, the penalty u/s 271(1)( c) cannot be levied. In the present case, the assessee has made claim which the deduction u/s 80IB (10) of the Act for the first time was allowed by the revenue whereas in the second assessment disallowed and rejected the same and therefore, this is not a fit case for levy of penalty. In the case of Prakash Steelage Ltd (supra), the Co-ordinate Bench of the Tribunal has held as under : "Once the assessee had not offered any income in consequence of search, in ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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