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TMI Blog2006 (10) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... 16,29,800 be deleted." 2. The Ld. Counsel for the assessee submitted that the assessee-company filed its return of income for the relevant assessment year 2003-04 on 28-11-2003 declaring total income of Rs. 78,85,962, after claiming deduction under section 80-IB of the I.T. Act amounting to Rs. 3.16 crores. The assessee-company is engaged in the business of building construction. A Survey Action under section 133A of the Act was carried out at the premises of the assessee on 25-11-2004. During the course of statement recorded by the Assessing Officer, the Director of the assessee-company Shri Hiramani P. Pandey admitted that the claim of deduction under section 80-IB shall be withdrawn. Thereafter, the assessee-company filed revised return of income on 29-12-2004 declaring income at Rs. 3.95 crores withdrawing its claim under section 80-IB of Rs. 3.16 crores. The Ld. Counsel for the assessee submitted that the issue of deduction under section 80-IB of the Act is highly contentious issue and the assessee has made the claim under section 80-IB of the Act as it was under the bona fide belief that it fulfils all the conditions for the grant of deduction under section 80-IB of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case. He referred to the written submission dated 28-7-2006 of the assessee with regard to Revision Petition of the assessee pending before the CIT, wherein it is specifically mentioned by the assessee that the claim of deduction under section 80-IB(10) of the Act amounting to Rs. 3.16 crores was wrongly and mistakenly withdrawn by the assessee subsequent to the Survey Action under section 133A of the Act conducted on 25-11-2004 by filing a revised return. The assessee has pleaded that the revised return filed was a gross error and mistaken act and totally contrary to the various facts and materials on record. A copy of this written submission is filed in the compilation by the assessee. The Ld. Counsel for the assessee relied on the decision in the case of ITO v. Roborant Investments (P.) Ltd. [2006] 7 SOT 181 (Mum.) wherein held that case involving genuine difference of opinion on matters of law between the assessee and the Assessing Officer are clearly outside scope of Explanation 1 to section 271(1) provided assessee has made full disclosure of all relevant facts and also acted bona fide. He relied on the decision in the case of Tata Engg. & Locomotives Co. Ltd. v. Gram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urely a residential housing project of the assessee. He relied on the decision in case of Asstt. CIT v. J.L. Kumar [2006] 5 SOT 694 (Delhi)(TM) wherein penalty under section 271(1)(c) of the Act was confirmed by the Ld. Third Member. He relied on the decision in the case of M.S. Mohammed Marzook v. ITO [2006] 283 ITR 254 (Mad.) wherein the Hon'ble Madras High Court held that no substantial question of law arises where the Tribunal has confirmed the penalty under section 271(1)(c) in a case where the revised return was filed after such a wrong statement in the original return not being due to bona fide or inadvertent mistake. 4. We have considered the rival submissions and have perused the orders of the Assessing Officer and the CIT(A). In this case, the penalty for concealment of income under section 271(1)(c) has been levied on account of claim of the assessee for deduction under section 80-IB(10) of the Act made in the original return of income filed by the assessee. The CIT(A) has confirmed the penalty under section 271(1)(c) of the Act considering the merits of the allowability of the claim of the assessee for deduction under section 80-IB(10) of the Act. The issue of deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s original return of income and was claimed under head "Deduction under Chapter VI-A" and the amount of Rs. 3,16,45,710 was claimed under section 80-IB(10) of the Act. In the statutory return of income Form No. 1 in column No. 19 the deduction of this amount of Rs. 3,16,45,710 was specifically claimed under Chapter VI-A. The bona fide of the assessee is proved beyond doubt with the letter of the assessee dated 18-12-2001 filed on 26-12-2001 addressed to the Assessing Officer seeking clarification that whether in the facts of the case of the assessee, it is entitled to 100% tax rebate in respect of profit and gains from the construction of assessee's new project "Gayatri Darshan", Thakur Complex, Kandivali (E), Mumbai under section 80-IB of the I.T. Act, 1961. This letter of the assessee was filed even much prior to the due date of filing of return by the assessee for the assessment year 2003-04. The issue of deduction under section 80-IB of the Act is a complex issue and there can be a genuine difference of opinion in the matter of deduction between the Revenue authorities and the tax payer. The Assessing Officer was not satisfied that the assessee has fulfilled the various conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 133A of the Act, shall not make liable the assessee for penalty under section 271(1)(c) of the Act. The decision of Hon'ble Madras High Court in the case of M.S. Mohammed Marzook v. ITO [2006] 283 ITR 254 is not applicable to the facts of the case of the assessee, since in the case before Hon'ble Madras High Court it was found by the Tribunal that the omission or wrong statement in the original return was not due to bona fide or inadvertent mistake on the part of the assessee. The decision of Ld. Third Member in the case of Asstt. CIT v. J.L. Kumar [2006] 5 SOT 694 (Delhi) is also distinguishable on facts. The assessee's bona fide is however proved by the Registered Architect's certificate dated 28-4-2003 wherein certified by Shri Himat A. Mehta Architect that the assessee has fulfilled the various conditions regarding the claim of deduction under section 80-IB of the Act. The Collector Mumbai District vide his certificate dated 7-2-2001 has classified the land in question measuring 15,169.30 Sq. meters, of which the plot area of the assessee is a part, as "residential". We find that this case pertaining to assessment year 2003-04 relates to pre-amendment period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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