TMI Blog2019 (6) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... ifically noted that the claim of the assessee under section 80IA was made under a bonafide belief and therefore, penalty under section 271(1)(c) was not sustainable. In our considered view, the fact situation before us is quite similar to the fact situation before the Hon ble Bombay High Court in the case of Petels Engineers Limited (supra) and, therefore, levy of penalty in the instant case is not justified on this count too. We hold so. - Decided in favour of assessee. - 7396/Mum/17 - - - Dated:- 19-6-2019 - Shri G.S. Pannu, Vice President And Shri Sandeep Gosain, Judicial Member For the Appellant : Shri Bhupendra Shah, AR For the Respondent : Shri Suman Kumar, DR ORDER PER G.S. PANNU, VICE PRESIDENT: The captioned appeal filed by the Assessee pertaining to Assessment Year 2013-14 is directed against an order passed by CIT(A)-20, Mumbai dated 9.10.2017, which in turn arises out of an order passed by the Assessing Officer under Section 271(1)(c) of the Income Tax Act, 1961 (in short the Act‟) dated 31.8.2016. 2. The assessee has raised the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction u/s.80IB(10) of the Act. The Assessing Officer levied penalty equivalent to 100% of tax sought to be evaded on the amount of deduction claimed u/s.80IB(10) of the Act. This levy of penalty u/s.271(1)(c) of the Act has since been upheld by the CIT(A) against which the assessee is in appeal before us. 5. Before us, the first and foremost grievance putforth by the assessee is that apart from the fact that the claim of deduction has been denied and the same is not disputed by the assessee in the quantum proceedings, nothing more has been shown to the effect that there was any concealment of income or furnishing of inaccurate particulars of income within the meaning of section 271(1)(c) of the Act. It has been canvassed before us that though the claim of deduction u/s.80IB(10) of the Act was not found to be tenable but that by itself is not enough to impose penalty u/s. 271(1)(c) of the Act considering that the claim was otherwise made by the assessee on a bonafide consideration. It was pointed out that though the approval of the local authority was post 31.3.2008, yet it is also a fact that the assessee had approached the local authority for seeking approv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made. It has been pointed out that the claim of the assessee for deduction has been faulted on a primary condition relating to date of approval of the project and, therefore, the Assessing Officer has correctly imposed penalty under section.271(1)(c) of the Act. 7. We have carefully considered the rival submissions. Ostensibly, section 271(1)(c) of the Act empowers the Assessing Officer to impose penalty in the course of proceedings of the Act if he is satisfied that the assessee has concealed his income or furnished inaccurate particulars of such income. In other words, in order to levy penalty, two pre-requisites are required to be fulfilled, namely, that the assessee has concealed the particulars of income or has furnished inaccurate particulars of such income. It is also a well settled position that the assessment proceedings and the penalty proceedings are separate and independent proceedings. It has been held by Hon ble Supreme Court in the case of Anantharam Veerasinghaiah Co. vs. CIT, (1980) 123 ITR 0457 (SC) that the findings in the quantum assessment proceedings are not conclusive to determine the levy of penalty u/s.271(1)(c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat though the project of the assessee is continuing from the earlier period, yet this was the first year of claim under section 80IB(10) of the Act since the sales were made in this year and the profits were arrived at. Secondly, reference was also made to a report issued by the auditor of the assessee regarding claim of deduction under section 80IB(10) of the Act. We have perused a copy of such report which has been placed in the Paper Book at pages 26 to 28. In the said report issued in the prescribed form 10CCB, though the date of approval of the project is correctly depicted as 11.6.2010, yet there is no disqualification stated by the auditor regarding claim of deduction under section.80IB(10) of the Act. In our considered opinion, this is a case where ostensibly, the fact situation shows that the claim was not tenable yet the claim was made , which can only be treated as a mistake or an error. We may hasten to point out here that it is not a case where any of the particulars of income or otherwise relating to the project have been found to be wrongly disclosed or untrue. It is not a case where a fact has been unearthed after investigations, which has lead to the denial of ded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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