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TMI Blog2019 (7) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... with penalty in the above facts and circumstances. Therefore, we allow all three appeals of the assessee and delete the impugned penalty. - Decided in favour of assessee. - ITA No.1013, 1623 And 1624/Ahd/2016 - - - Dated:- 9-7-2019 - Shri Rajpal Yadav, Judicial Member And Shri Pradipkumar Kedia, Accountant Member For the Assessee : Shri Anil R. Shah, And Kinjal Shah, AR For the Revenue : Shri Vinod Tanwani, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: Present three appeals are directed at the instance of the assessee against orders of the ld.CIT(A) dated 27.2.2014, 12.4.2016 and 12.4.2016 passed in the Asstt.Year 2008-09, 2009- 10 and 2010-11 respectively. 2. Sole grievance of the assessee is that the ld.CIT(A) has erred in confirming the penalty of ₹ 4,25,030/-, ₹ 18,30,060/- and ₹ 12,74,580/- in the Asstt.Years 2008-09 to 2010-11 respectively, which were imposed by the AO under section 271(1)(c) of the Income Tax Act. 3. Facts on all vital points are common in all these assessment years. For the facility of reference, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see during the course of hearing submitted a list of events which read as under: 1) Industrial Park Scheme Started on 16-8-2007 2) Appl. To C B D T for Notification of Scheme by C B D T. 27-12-2007 3) I.T. Return filed stating claim and other Basic Details for order u/s. 143( 1) was passed 27-9-2009 4) Notice u/s. 143(2) was issued dated further details furnished for claim of Exemption u/s.80IA (4)(iii) further details were submitted 9-11-2011 18-8-2010 5) Assessment Order dated u/s. 143(3) passed dated Computing Total Income of ₹ 59,22,530 19-12-2011 6) Show Cause Notice of Penalty u/s.271(l)(c ) for Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, it has claimed deduction under section 80IA(4) of the Act. It has not furnished inaccurate particulars, rather it has disclosed all the details. The deduction could not be granted to the assessee because ultimately its proposal was not approved by the CBDT. Had the assessee not made claim and its scheme was got approved, then it would be prohibited to make such claim. He also pointed out that order of the CBDT was set aside by the Hon ble Gujarat High Court in Special Civil Application No.18098 of 2016. The Board has ultimately rejected its application on 13.5.2014. It is a subsequent development i.e. after assessment order passed in these assessment years. On the strength of the above, the ld.counsel for the assessee submitted that there is no deliberate attempt at the end of the assessee to furnish any inaccurate particulars of income or conceal the income. 7. On the other hand, the ld.DR relied upon the order of the ld.CIT(A). He submitted that the assessee was well aware about its illegibility for making such claim. It was very specific that unless CBDT approves its claim it cannot make a claim under section 80IA(4)(iii) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led his income or furnished inaccurate particulars of income. As far as the quantification of the penalty is concerned, the penalty imposed under this section can range in between 100% to 300% of the tax sought to be evaded by the assessee, as a result of such concealment of income or furnishing inaccurate particulars. The other most important features of this section is deeming provisions regarding concealment of income. The section not only covered the situation in which the assessee has concealed the income or furnished inaccurate particulars, in certain situation, even without there being anything to indicate so, statutory deeming fiction for concealment of income comes into play. This deeming fiction, by way of Explanation I to section 271(1)(c) postulates two situations; (a) first whether in respect of any facts material to the computation of the total income under the provisions of the Act, the assessee fails to offer an explanation or the explanation offered by the assessee is found to be false by the Assessing Officer or Learned CIT(Appeal); and, (b) where in respect of any fact, material to the computation of total income under the provisions of the Act, the assessee is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that its scheme would be approved and it will be entitled for deduction under section 80IA(4) of the Act. When the assessment proceedings were going on, its proposal was pending before the CBDT. This fact was in the knowledge of the department. As far as disallowance of the deduction claimed by the assessee in the quantum proceeding is concerned, since the assessee failed to fulfill the requisite condition that deduction has to be disallowed, but for the purpose of penalty, we have to ascertain whether a deliberate effort was made by the assessee for withholding such information or furnishing inaccurate particulars, which would lead to concealment of income. To our mind, the assessee has made a claim anticipating sanction of scheme by the CBDT and it has disclosed this fact during the course of assessment proceedings. It does not deserve to be visited with penalty in the above facts and circumstances. Therefore, we allow all three appeals of the assessee and delete the impugned penalty. 11. In the result, all three appeals of the assessee are allowed. Order pronounced in the Court on 9th July, 2019. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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