BHOOMIVIJAY PROPERTIES PRIVATE LIMITED ,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX (OSD)-9(2)(1), MUMBAI

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.

The assessee has raised the following grounds of appeal:

The appellant before us, is engaged in the business of construction, development and redevelopment of real estate. In the course of assessment proceedings, the Assessing Officer noted that the assessee claimed a deduction u/s. 80IB(10) of the Act of Rs.1,74,61,595/-, which was found to be untenable. In the assessment finalized u/s.143(3) of the Act on 11.2.2016, the deduction has been denied primarily on the ground that it was related to the profits and gain earned from a housing project, which was approved by the local authority after 31.3.2008. Pertinently, the housing project of the assessee was approved by the local authority

Subsequently, the Assessing Officer passed an order dated 31.8.2016 holding the assessee guilty of default u/s.271(1)(c) of the Act qua the wrong claim 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.

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 : 4 : 7396/Mum/17 M/s. Bhoomi Vijay Properties Pvt Ltd also a fact that the assessee had approached the local authority for seeking approval much prior to the stipulated date. In this context, ld Representative of the assessee pointed out that this was the first year of the claim though in the past years, the project of the assessee was under construction. The sales were made only in this year and upto the earlier assessment years, the entire expenditure was shown as work-in-progress and, therefore, there was no occasion for making any claim u/s. 80IB(10) of the Act. Regarding making of full and true disclosure, ld Representative of the assessee pointed out that even in the Audit report issued by the Auditor, the date of approval has been correctly depicted. It is pointed out that even the income returned qua the housing project in question has not been disputed by the Assessing Officer and the return of income has been correctly filed. Merely because a claim made in the return has not been found to be tenable, cannot be a ground to impose penalty. It has been argued that even otherwise, there was no intention to suppress payment of tax inasmuch as in the return of income filed, the assessee has paid the tax of Rs.36 lakhs in terms of Minimum Alternative Tax (MAT) on the book profits. Consequent to the disallowance of deduction claimed u/s.80IB(10) of the Act, the additional tax liability was only to the extent of Rs.15 lakhs which the assessee duly paid alongwith interest. The Representative of the assessee pointed out that if the claim of deduction was not made in the return, the tax liability would have arisen under the normal provisions of the Act, which would have required payment of Rs.15

On the other hand, Ld. Departmental Representative appearing for the Revenue pointed out that this is a case where a wrong claim of deduction was found to have been 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.

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 : 6 : 7396/Mum/17 M/s. Bhoomi Vijay Properties Pvt Ltd 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 Act though such findings may be relevant. In other words, the fact that a particular amount has been determined as income in the quantum assessment proceedings, cannot ipso facto, be conclusive for imposing penalty u/s.271(1)(c) of the Act. The Hon'ble Supreme Court in the case of of CIT vs. Reliance Petroproducts Ltd, 322 ITR 158(SC) held that even if a claim made in the return of income is found to be untenable, that by itself would not be enough for levy of penalty u/s.271(1(c) of the Act unless it is found that there is any falsity or untruth in filing of particulars.

In the above background, we may now examine the facts of the present case. In the instant case, the assessee was undertaking development of housing project and it claimed deduction under section 80IB(10) of the Act with respect to profits and gains derived from such project. The claim was denied in the assessment proceedings because one of the conditions to the effect was that the project ought to have been approved by the local authority upto 31.3.2008, was not fulfilled. The : 7 : 7396/Mum/17 M/s. Bhoomi Vijay Properties Pvt Ltd project of the assessee was found to have been approved by the local authority on 11.6.2010 as noted in the assessment order. This disentitled the assessee from the claim of deduction. Undoubtedly, the date of approval of the project is primary condition which is required to be satisfied while making the claim of deduction under section 80IB(10) of the Act. The ld.Representative of the assessee explained that the application seeking approval was made somewhere in 2008, which is evidenced by a copy of IOD issued by Kalyan Dombivqali Mahanagarpalika, Kalyan (the relevant local authority). The IOD is dated 28.7.2009, which also finds a mention in the assessment order at para 4.6. This communication refers to an application made by the assessee seeking approval on 6.5.2006. The moot point to be examined at this stage is as to whether the claim made by the assessee in the return of income was on bonafide consideration or not. Ostensibly, there is a mistake in making the claim inasmuch as the approval is not before the stipulated date i.e. 31.3.2008. However, the mistake which has resulted into the denial of deduction by itself cannot be construed as a fit case for levy of penalty under section 271(1)(c) of the Act. It has been explained before us that 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 : 8 : 7396/Mum/17 M/s. Bhoomi Vijay Properties Pvt Ltd 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 deduction. In fact, the date of approval was very much evident from the material forming part of the return of income. No particular has been hidden or concealed by the assessee. The only aspect is that the claim of deduction was made which is otherwise not allowable because of the non-satisfaction of the conditions regarding date of approval of the project. In view of fact situation that is existing herein, in our considered opinion, the reliance placed by the Representative of the assessee on the judgment of Hon’ble Supreme Court in the case of Price Waterhouse Coopers vs CIT, 348 ITR 306(SC) as well as in the case of Reliance Petroproducts (supra) clearly support the stand of the assessee that penalty under section 271(1)(c) is not merited.

At the time of hearing, the ld. Representative for the assessee also relied upon the judgment of Hon’ble Bombay High Court in the case of CIT vs. Petels Engineers Limited, 42 taxmann.com 433 (Bom), wherein, in a somewhat similar situation, penalty has been found to be not exigible. In the case before the Hon’ble High Court, the assessee had claimed deduction under section 80IA of the Act. It was found that the assessee had shifted its unit from one place to another and that 80% of the cost of plant and machinery on the new factory was by way of acquiring new plant and machinery and only less than 20% of cost was towards transferring plant and machinery of the unit. The assessee was under the impression that it was entitled to benefit under section 80IA of the Act and it also obtained professional advise in this regard. The claim of the assessee for deduction under section 80IA came to be rejected in the quantum assessment proceedings. In the penalty proceedings, the Tribunal noted that there was no suppression of facts or misrepresentation of facts by the assessee even when the claim was denied in the quantum assessment proceedings. Therefore, it deleted the penalty imposed under section.271(1)(c) of the Act, which was affirmed by Hon’ble Bombay High Court in the case of Petels Engineers Limited(supra). The Hon’ble High Court specifically noted that the claim of the assessee under section 80IA was made under a bonafide belief and therefore, penalty under section 271(1)(c) of the Act was not sustainable. In our considered view, the fact situation before us is quite similar to the fact situation before the Hon’ble

Before parting, we may mention here that the assessee had taken an alternative ground that the lower authorities have imposed penalty overlooking the fact that the addition was made under normal provision whereas return was filed with tax u/s.115JB. Another plea was also raised to the effect that the notice issued under Section 274 r.w.s. 271 was invalid in the absence of mention of a specific charge.

Since, we have already deleted the penalty in the earlier paras, the other pleas raised by the assessee are rendered academic and are not being adjudicated for the present.

In the result, appeal filed by the assessee is allowed, as above.