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TMI Blog2018 (4) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... al within the stipulated time. Ld D.R. did not have any objection for condoning the delay. We, therefore, condone the delay of 108 days in filing the appeal before the Tribunal and admit the appeal for hearing. 3. The sole issue involved in the grounds of appeal is that the CIT(A) erred in confirming the levy of penalty of Rs. 5,97,480/- u/s.271(1)(c) of the I.T.Act, 1961. 4. The brief facts of the case are that the Assessing Officer disallowed deduction of Rs. 16,65,43/- claimed under section 80 IB of the Act for the following reasons: "The assessee had claimed deduction of Rs. 16,65,433/- u/s.80IB of the I.T.Act, 1961 in respect of its project at Patia, POChandrasekharpur and at Ghatikia, PS-Khandagiri. The assessee did not submit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k to the total income." 5. Thereafter, the Assessing Officer levied penalty of Rs. 5,97,480/- for concealment of income u/s.271(1)(c) of the Act, which was confirmed in appeal by the CIT(A). 6. Ld A.R. of the assessee argued before us that penalty cannot be levied where deduction claimed in the return of income by the assessee is disallowed by the Assessing Officer. He relied on the decision of Hon'ble Supreme Court n the case of CIT vs. Reliance Petroproducts (P) Lt., 322 ITR 158 (SC), wherein, it was held that "merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the revenue, that by itself would not attract the penalty u/s.271(1)(c). if the contention of the revenue is accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of section 80IB(10)(c) of the Act. Therefore, he disallowed the deduction for the entire project claimed by the assessee. We find that Hon'ble Madras High Court in the case of VISWAS PROMOTERS PRIVATE LIMITED vs. ASSISTANT COMMISSIONER OF INCOME TAX, 255 CTR 149 (Mad) vide order dated 2November, 2012 has observed as under: "14. On the facts admitted by the Revenue, in the projects "Agrini" and "Vajra", there are number of flats which are below 1500 sq.ft., and the relevant built-up area requirement is specified under Section 80IB(10)(c) of the Income Tax Act. Thus, the built-up area in some of the flats in both these projects are in excess of 1500 sq.ft., i.e., 32 flats in Agrini and only one flat in Vajra and that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that one of the blocks have units exceeding built-up area of 1500 sq.ft, per se, would not result in nullifying the claim of the assessee for the entire projects. Consequently, in respect of each of the blocks, the assessee is entitled to have the benefit of deduction in respect of residential units satisfying the requirement under Section 80IB(10)(c) of the Act. In so holding, we also agree with the decision of the Bombay High Court reported in (2012) 206 TAXMAN 584 (CIT v. Vandana Properties), which was decided by the Bombay High Court on similar lines as in the assessee's case before us. 15. In the light of the above reasoning, we have no hesitation in allowing the cases cases filed by the assessee in respect of assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed deduction of that income u/s.80IB(10) of the Act. It is not a case of concealment of income. 11. Further, the Hon'ble Supreme Court in the case of CIT vs Reliance Petroproducts (P) Ltd., 322 ITR 158(SC)has held that merely making of a claim of deduction which is found to be not allowable does not invite penalty u/s.271(1)(c) of the Act. In the instant case, in absence of details of any income where particulars were found to be concealed by the assessee, in our considered view, the penalty imposed by the Assessing Officer and confirmed by the CIT(A) is untenable. We, therefore, delete the penalty of Rs. 5,97,480/- levied u/s.271(1)(c) of the Act and allow the grounds of appeal of the assessee. 12. In the result, appeal of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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