ITO 21(2)(4), MUMBAI vs. THE SWASTIK CO OPERATIVE HOUSING SOCIETY LTD, MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद� राजे� के अनुसार PER RAJENDRA, AM- Challenging the order dt.17.09.2013 of the CIT(A)-32,Mumbai the Assessing Officer(AO)has filed the present appeal. 2.Assessee-Co-operative-Housing-Society,filed its return of income on 24.09.2009,declaring total income at Rs.NIL.The AO completed the assessment on 28.12.2011,u/s.143(3) of the Act, assessing its income at Rs.24.15 lakhs.While completing the assessment,the AO made additions to the income of the assessee under the heads transfer fees received(Rs.13.59 lakhs)and TDR Premium received(Rs.10.55lakhs).Penalty proceedings u/s. 271(1)(c) of the Act were initiated on the ground that assessee had furnished inaccurate particulars of income and had concealed its income.As per the AO,in response to the show cause notice for levying concealment penalty the assessee did not file any reply.Vide his order dated 26.12.2012,the AO levied penalty of Rs.8.22 lakhs u/s. 271 (1) (c)of the Act. 3.Aggrieved by the penalty order of the AO, the assessee preferred an appeal before the FAA.After considering the submission of the assessee,the assessment order and the penalty order the FAA held that both the issues were covered in favour of the assessee by the judgments of the Hon’ble jurisdictional High Court,that the assessee had not furnished inaccurate particulars of income. 4.Before us,the Departmental Representative(DR)stated that matter could be decided on merits. We find that the AO had made the additions on two counts namely AO transfer fees received and TDR Premium received,that the FAA had deleted the penalty relying upon the judgments of Bombay High Court delivered in the cases of Sind Cooperative Housing Society(182Taxman 346)and Jai Hind CHS Ltd.(I T Appeal No.6057 of 2010),that additions made by the AO are not sustainable in light of the judgments of the Hon’ble Court,that mere addition in quantum

ITA 6924/M/13(09-10)