TMI Blog2013 (4) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty u/s. 271(1)(c) amounting to ₹ 5,53,042/- for A.Y. 2003-04 and ₹ 8,97,228/- for A.Y. 2004-05 are the issues in the grounds raised by the assessee in both these appeals. ITA No.97/PN/2013 (A.Y. 2003-04) : 3. Facts of the case, in brief, are that the assessee is a partnership firm engaged in the business of developing and construction of property. For the impugned assessment year the assessee filed its return of income declaring NIL income after claiming deduction of ₹ 18,43,476/- u/s.80IB(10) of the Income Tax Act. The Assessing Officer vide order dated 25-01-2006 passed u/s.143(3) accepted the claim of the assessee and determined the total income at NIL . Subsequently, a search and seizure action took pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned C.I.T.[A] has failed to appreciate that since in the original assessment order framed u/s 143[3] of the I.T. Act 1961, [which had attained finality on the date of search] the claim of deduction u/s 80 IB [10] was allowed by the learned Assessing Officer after scrutiny and due application of mind, the disallowance of the said deduction in assessment framed u/s 153 A of the I.T. Act 1961, particularly in the absence of any incriminating material or fresh facts cannot constitute concealed income or furnishing in accurate particulars of income warranting levy of penalty u/s 271[1][c] of the I.T. Act 1961. The impugned penalty being bad in law, patently illegal, without jurisdiction and void ab-initio the same may please be deleted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed assessments/re-assessments were contrary to the facts unearthed during the course of 153A proceedings. 6. So far as the payment of Employees Contribution towards P.F. is concerned he submitted that the same were paid before filing of the return and in view of catena of decisions the assessee is entitled to deduction of the same. He submitted that merely because the assessee has not preferred any appeal the same cannot be a ground for levy of penalty u/s.271(1)(c) of the Income Tax Act and the assessee can always argue his case on every issue during penalty proceedings. He submitted that since in view of the decision of the jurisdictional High Court the initiation of proceedings u/s.153A would not affect the assessment finalised on 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 A perusal of the assessment order shows that the Assessing Officer disallowed claim of deduction u/s.80IB(10) on account of non-attachment of Form 10CCB and non-furnishing of details such as size of the plot, date of commencement and date of completion of the residential unit, building plan etc. Similarly, the Assessing Officer made the disallowance u/s.36(1)(va) r.w.s. 2(24)(x) on account of details found from the Audit report. Nothing incriminating was found during the course of search which would show that the relief u/s.80IB(10) was erroneous. Similarly, nothing was found due to the search which would otherwise show that the assessee had concealed the particulars of income on account of delayed payment of Employees Provident Fund. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any material was unearthed during the search or during the 153A proceedings which would show that the relief under section 80HHC was erroneous. In such a case, the Assessing Officer while passing the assessment order under section 153A read with section 143(3) could not have disturbed the assessment order finalised on 29-12- 2000 relating to Section 80HHC deduction and consequently the C.I.T. could not have invoked jurisdiction under Section 263 of the Act . 9. Since in the instant case the original assessment was finalised on 25- 01-2006 and the search took place thereafter, i.e. on 11-02-2009, therefore, in view of the decision cited (Supra) the initiation of proceedings u/s.153A would not affect the assessment finalised on 25-01-2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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