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TMI Blog2011 (3) TMI 1775X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,983/-. The AO disallowed the deduction claimed holding that under the facts and circumstances of the case, the assessee was not eligible for deduction as it did not fulfill all the conditions as laid down u/s. 80IB of the Act. 3. Aggrieved by the order of the AO, assessee is in appeal before the Ld. CIT(A). The Ld. CIT(A) held as follows: "This issue came up for adjudication in the appellant's own case for A.Y. 2003-04 and A.Y. 2004-05 and it had been discussed in detail in my predcessor's appellate order for A.Y. 2003-04 dt. 19.10.2006. For the reasons as mentioned in the appellate order for A.Y. 2003-04, it is held that the AO rightly disallowed the deduction claimed u/s. 80IB(10) of the Act and the addition is confirmed." 4. Aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the assessee fulfills the condition of the area of the plot that it should be minimum one acre. As per the approved lay-out of the plot of land filed before us, it is seen that the original owner has undertaken the project as "Phase-I" in which he constructed two buildings i.e. building 'A' and building 'B' and building 'C' is constructed by present assessee. The area of the plot on which the "phase-I" of the project is undertaken admeasures 8573.18 sq. meters. The reservation of the 15% is also shown at 1,285.98 sq. meters. The original owner has already constructed building 'A' and building 'B' having the following build-up area. Building 'A' 3191.45 Sq. meters Building 'B' 2423.96 Sq. meters -------------------------- To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deduction and the claim of deduction was found to be not genuine. 9. In course of penalty proceeding the appellant submitted that the disallowance was made is technical in nature hence, penalty should not be levied. The A.O. has given following reasons for levy of penalty and quantum of penalty at Para 4-5 of his order. The same is quoted as under :- ". A penalty notice dated 31.10.2006 has been issued. During the couse of penalty proceedings the assessee company has made its submission vide its authorized representative's letter dated 09.05.2007 which is duly considered. The main argument of the A/R is that disallowance made is technical in nature hence penalty should not be levied. The A/R of the assessee has also relied upon a nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 886/- u/s.271(1)(c) of the I.T. Act." 10. Aggrieved assessee was in appeal before the Ld. CIT(A). The Ld. CIT(A) by an elaborate order contained in paras 2 (a) to 2(h) at pages 6 to 8 of his order confirmed the order of the AO levying penalty at the maximum rate of 300% of tax sought to be evaded. 11. Aggrieved, assessee is in appeal before us. We find that the quantum appeal in ITA No. 6814/M/2006 for A.Y. 2003-04 by ITAT 'J' Bench has set aside to the file of the AO and directions have been given by the Tribunal to the AO to be followed during the assessment proceedings, hence we deem it fit that the matter of penalty shall also be restored to the file of the AO to decide the same in accordance with law. 12. In the result, the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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