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TMI Blog2019 (3) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case the appellant craves leave to amend or alter any grounds or add a new ground which may be necessary. 3. Brief facts of the case as noted in the assessment order are as under: The assessee is a builder and developer. The assessee filed the return of income for the Assessment Year 2007-08 on 31.10.2007 declaring total income of Rs. 1,33,71,620/-. The assessment under section 143(3) was completed on 29-12-2009 determining the total income at Rs. 23,93,32,030/-, after making the following additions: - Sr. No. Addition Amount 1) Business income on account of sale of flats of "Manish Gardens Project 2,42,51,035/- 2) Business income on account of sale of land (development rights)held as stock-in-trade to M/s Kubix Realties Pvt Ltd. 11,04,54,860/- 3) Long Term Capital Gains 9,09,29,507/- 4) Interest on Fixed Deposit 3,25,000/- The additions were primarily made on 1. Disallowance of benefit of claim U/s.80IB(10) of the Income Tax Act,1961 which amounted to Rs. 2,42,51,035/-. 2. Rs. 11,04,54,860/- being a business income 3. Rs. 9,09,29,507/- being treated as long term capital gain and 4. Rs. 3,25,000/- being Interest on Fixed Deposit. 4. As regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT decision in appellant's own case for A.Y. 2004- 05, Percentage Completion method will be applicable with respect to profit from the Manish Garden Project for A.Y. 2007-08. (ii) (ii) The appellant is not entitled for deduction u/s 80 IB(10) on the basis of the facts highlighted by the AO for A.Y. 2007-08. (iii) Following the decision of Hon'ble ITAT for A.Y. 2005-06, the income from sale of land to M/s Kubix Realities Pvt. Ltd. i.e., Rs. 11,04,54,860/- will be treated as business income. The same will be taxed in A.Y. 2007-08 since possession of land was given in the relevant F.Y. (iv) Similarly, Long term capital gain on the land sold to M/s Kubix Realities Pvt. Ltd. i.e., Rs. 9,09,29,507/- will be taxed in A.Y. 2007-08 since registration and possessions were given during the period relevant to A.Y. 2007-08. (v) Finally, interest of Rs. 3,25,009/- will also be taxed in A.Y. 2007-08 since even Auditors have pointed out that it pertains to F.Y.relevant to A.Y. 2007-08 and not A.Y. 2008-09. 7. In the penalty proceedings, the assessee in response to the show cause notice submitted that the penalties are primarily on all the issues due to difference of opinion between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year. Therefore, the dispute raised by the Revenue is entirely academic or at best may have a minor tax effect. There was, therefore, no need for the Revenue to continue with this litigation when it was quite clear that not only was it fruitless (on merits) but also that it may not have added anything much to the public coffers. 33. For the aforesaid reasons, we dismiss the civil appeals with no order as to costs, but with the hope that the Revenue implements its, litigation policy a little more practically and a little more seriously." 14. In the facts of the case, I find that as regards additions of Rs. 2,42,51,035/- and also Rs. 11,04,54,860/- being a business income and Rs. 9,09,29,507/- being treated as long term capital gain, it is not in dispute that the appellant had already offered the aforesaid income in the subsequent year pertaining to assessment year 2008-09. It is also not in dispute that the return for assessment year 2008-09 was filed on 30.09.2008 where the appellant had already offered the aforesaid income even prior to assessment was completed and, therefore, it is not a case where the income assessed was not brought to the knowledge of the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llnexplained expenditure* assessee could be held to have concealed income and/or furnished inaccurate particulars of income and, therefore, to be liable for penalty under section 271(l)(c)-Held, no. 15. It is also observed that the decision of the Hon'ble Mumbai ITAT in the case of 'Parinee Developers Pvt. Ltd vs ACIT (supra) is applicable to the facts of the instant case. Thus, considering the overall fact and circumstances of the issue involved, penalty levied on sum of Rs. 2,42,51,035/-, Rs. 11,04,54,860/- and Rs. 9,09,29,507/- is hereby deleted. 11. Against the above order, the Revenue is in appeal before us only with regard to the deletion of penalty with regard to addition of Rs. 2,42,51,035/-. The Revenue has not appealed against the deletion of penalty qua the addition of Rs. 11,04,54,860/- and Rs. 9,09,29,507/-. 12. We have heard both the counsel and perused the records. The ld. Departmental Representative (ld. DR for short) submitted that this is clearly a case of furnishing of inaccurate particulars of income and the A.O. has correctly levied the penalty. He submitted that the addition have been sustained by the ld. CIT(A). Hence, penalty levied is justified. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant to the AY under consideration. Basing on the method of accounting followed i.e. percentage completion method, the assessee offered sum of Rs. 239.27 Crs (ie around 43% of the total sales based on the project) for the year under consideration as the completed area works out to 42,92%. However, assessee reversed the sale to the extent of 36,038 sqft amounting to Rs. 179.03 Crs for some reasons / developments. This amount of sales was not shown by the assessee in the AY 2009-2010 basing on the percentage completion method. However, the said amount was reflected in the return for the AY 2010-2011 based on the principle of,,pay as you earn". During the first appellate proceedings ie enhancement of assessment, the whole of the sales made to the Standard Chartered Bank was offered as recognising the income by filing the revised return of income preponing the completion of the project from 2012-2013 to 2009- 2010, the A Y under consideration. CIT (A) levied the penalty on this sum of sales of Rs. 179.03 Crs which is otherwise offered to tax in the AY 2010-2011 8. During the proceedings before us, on the above facts, Ld Counsel for the assessee submitted that this is the case of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable in law considering the above referred judgment of the Hon"ble Supreme Court in the case of Excel Industries (supra). 9. Per contra, Ld DR for the Revenue submitted that the assessee did not offer the said income in the year under consideration initially, but for the decision of the CIT (A) to tax the whole of the sale proceeds in the year under consideration. However, on sustainability of the said addition Ld DR has nothing to state except that the above addition was accepted by the assessee and the same has reached finality. 10. On hearing both the parties, we find there is no dispute on the facts that the said sum ofRs. 179.03 Crs is undisputedly offered in the A Y 2010-2011 and the same is now taxed in the year under consideration, where the tax rates are identical in both the years. Therefore, the legal question will arises from the above facts is should the addition by way of preponement of the already disclosed income attracts such levy of penalty u/s 271(l)(c) of the Act or not. The assessee offered the said income in the later assessment year basing on the principle "pay as you earn". This principle is upheld by the Hon"ble Supreme Court in the case of Excel I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that department has stressed upon the fact that no income has been really offered in AY 2008-09 since assessee has incorrectly claimed deduction u/s 80IB(10). Accordingly, department has contended that the contention of the assessee that income has been offered in AY 2008-09 is incorrect. 12. Now, coming to the objection of the department that deduction claimed by the department is incorrect, it is submitted that the deduction u/s 80IB(10) was originally disallowed by the AO in the assessment order. Against the said order, an appeal was filed before CIT(A) and finally before Hon'ble ITAT. Against the said appeal, the deduction u/s 80IB(10) on profit from Project Manish Garden has been allowed by ITAT vide its order dated 31.05.2017 bearing ITA No.2955/Mum/2012, after appreciating the facts of the case at para 28. The copy of the order is enclosed herewith. ' 13. Therefore, the contention of the department that the deduction claimed by the assessee is incorrect is incorrect and nullified by the ITAT own order. 14. Thus, it is submitted that the contention of the department is incorrect and there is no occasion on the part of the assessee of concealing or furnishing any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(c). Furthermore, in identical fact, the ITAT in case of Parinee Developers Pvt. Ltd. (supra) referred above deleted the penalty with reference to preponment of sale offered in the next year. 16. Furthermore, just because the assessee has not appealed against the addition, the same cannot lead to a inference of contumacious conduct of the assessee. As rightly noted by the ld. CIT(A) the issue was only year of taxability and in this regard, the ld. CIT(A) has rightly relied upon the decision of the Hon'ble Apex Court in the case of CIT vs. Excel Industries (supra) wherein the Hon'ble Apex Court had expounded that the Revenue should not be aggrieved if it was only a matter of difference in the year of taxability. It was held that the rate of tax remained the same in the present assessment year as well as in the subsequent assessment year. Therefore, it was held that the dispute raised by the Revenue was entirely academic or at best may have a minor tax effect. Therefore, it was held that there was no need for the revenue to continue with this litigation when it was quite clear that not only was it fruitless (on merits) but also that it may not have added anything much to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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