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TMI Blog2018 (10) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... levant ground No.3 for all the three appeals challenging the penalty confirmed by Ld.CIT(A) u/s 271(1)(c ) of the Act. Decided in favour of assessee. - ITA No.82 to 84/Ind/2017 - - - Dated:- 18-10-2018 - SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Revenue : Shri P.K. Mitra, Sr.DR For The Assessee : Shri Jayesh Doshi ,CA ORDER PER MANISH BORAD, AM. These three appeals filed at the instance of the assessee pertaining to Assessment Year 2004-05, 2005-06 2006-07 are directed against the consolidated order of Ld. Commissioner of Income Tax(Appeals)-3 (in short CIT(A) ), Bhopal dated 8.12.2016 which are arising out of the order u/s 271(1)(c) of the Income Tax Act 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outset the Ld. Counsel for the assessee submitted that the penalty has been levied u/s 271(1)(c) of the Act on the disallowance of deduction claimed u/s 80IB(10) of the Act by the assessee at ₹ 11,00,000/-, ₹ 28,00,000/- and ₹ 8,00,000/- respectively for Assessment Year 2004-05, 2006-07 and 2007-08 respectively. He submitted that the alleged notice issued u/s 274 r.w.s. 271(1)(c) of the Act is not valid as the Ld. Assessing Officer (In short Ld.A.O) has not mentioned the specific charge in the notice against the assessee as to whether the impugned penalty has been levied for concealing the particulars of income or furnishing inaccurate particulars of income. Such notices have been held to be invalid and the proceedings u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase about the justification of levying the penalty u/s 271(1)(c) of the Act on the alleged disallowance of deduction u/s 80IB(10) of the Act. 10. We find that the assessee claimed deduction u/s 80IB(10) of the Act in respect of housing project. The map was approved. Audited Report in Form 10CCB of the IT rules were issued by the Chartered Accountant. Project was approved by the local authority. However the assessee was denied deduction u/s 80IB(10) of the Act because the commercial constructed area sold by the assessee exceeded the statutory limit provided under the provisions of Section 80IB(10) of the Act which says that such commercial constructed area should not exceed 5% of the aggregate built up area of the housing project or 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be inaccurate nor could be viewed as concealment of income on its part it was up to the authorities to accept its claim in Return or not Merely because assessee had claimed expenditure, which claim was not accepted or was not acceptable to Appellant, that by itself would not, in our opinion, attract penalty under Section 271(1)(c) of Act. If Court accepts contention of Appellant then in case of every Return where claim made is not accepted by Assessing Officer for any reason, assessee will invite penalty under Section 271(1)(c) of Act That is clearly not intendment of Legislature 13. Ld. Counsel for the assessee has also relied on the decision of Hon'ble High Court in the case of Principal Commissioner of Income Tax V Surabh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case and legal position of the issue, I am of the considered view that the appellant is not liable for penalty u/s 271(1)(C) for claiming deducting u/s 80IB(1O) on the profits derived from a housing project in A.Ys 2006-07 2007-08. Accordingly, penalty orders u/s 271(1)(C) for these assessment years imposing penalty of ₹ 58,78,458/-- ₹ 32,35,858/-respectively are hereby, cancelled . It is the said order which was not interfered with by the Tribunal in further appeal. Learned counsel for the appellants placed reliance upon an order passed by the Delhi High Court reported as (2010) 327 ITR 510 [Commissioner of Income Tax Vs. Zoom Communication (P) Limited], to contend that if the issue is not debatable th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) and the Tribunal have given a finding of fact that there was no incorrect declaration filed by the assessee. Said is a finding of fact, which does not give rise to any substantial question of law. Accordingly, both the appeals are dismissed. 14. Ld. Counsel for the assessee also stated at the bar that the the appeal of the assessee i.s Fortune Builders relating to quantum addition is pending before the Hon ble Apex Court. This fact proves that there is a substantial question of law in the ground raised by the assessee on the quantum addition which means that two legal views were possible at the time of claiming deduction u/s 80IB of the Act and one cannot ignore the possibility that the assessee may succeed. 15. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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