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TMI Blog2021 (4) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ich fact is in conformity with the judgment of the Hon'ble Jurisdictional High Court in CIT v/s Brahma Associates [ 2011 (2) TMI 373 - BOMBAY HIGH COURT] wherein it has been held that the claim is fully allowable in case the project was approved prior to the amendment made in law w.e.f. 1st April 2005. In view of these observations, the learned Commissioner (Appeals) held that the assessee was eligible for claiming deduction under section 80IB Co ordinate Bench has allowed the claim of assessee under section 80IB of the Act for the assessment year 2010 11 and 2012 13 even though these claims were also made first time before the Assessing Officer. The claim of the assessee for the assessment year 2009 10 was rejected. Just because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn u/s 153A was also filed 22nd September 2019, showing nil income after claiming deduction of ₹ 6,78,84,610. The Assessing Officer completed assessment on 28th March 2014, under section 143(3) r/w section 154A determining total income of ₹ 6,78,84,610, observing that the assessee is not eligible for deduction under section 80IB(10). Accordingly, the Assessing Officer made various additions which subsequently resulted in initiation of penalty proceedings under section 271(1)(c). Meanwhile, during the first round of litigation before the first appellate authority, the learned Commissioner (Appeals) confirmed the additions made in the assessment order on account of disallowance under section 80IB amounting to ₹ 6,78,84,610, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for levy of penalty u/s 271(1)(c) of the Act for concealment of particulars of income. Moreover because all the details have been submitted by the appellant in its return of income, both u/s 139(1) and u/s 153A. 10. The apex court in the case of Reliance Petro Products Pvt Ltd 322 hR 158 (SC) 2010 have held that mere making of a claim which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. In RELIANCE Petro Products (Supra) the apex court has held as under: the assessee had furnished all the details of its expenditure as well as income in its return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Since the quantum addition was deleted by the learned Commissioner (Appeals), consequently, the penalty order passed by the Assessing Officer became infructuous. Therefore, the learned Commissioner (Appeals) directed the Assessing Officer to delete the penalty. The Revenue, being not satisfied with the order of the learned Commissioner (Appeals), carried the issue of deletion of penalty before the Tribunal. 5. Before us, the learned Departmental Representative submitted that the assessee was not eligible for deduction under section 80IB(10) of the Act. The learned Commissioner (Appeals) held that no new and fresh claim can be made in the return of income filed under section 153A of the Act. He submitted that the assessee neither inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eji Heights. We notice that the learned Commissioner (Appeals) observed that the assessee did not make the said claim in the return of income since the assessee was under mistaken understanding of the law that since it has constructed commercial units, it cannot claim benefit under section 80IB(10) of the Act. Further the learned Commissioner (Appeals) noticed that the assessee s housing project was approved on 16th April 2004, therefore, the project was eligible for claiming deduction under section 80IB of the Act which fact is in conformity with the judgment of the Hon'ble Jurisdictional High Court in CIT v/s Brahma Associates, 51 DTR 298 (Bom.), wherein it has been held that the claim is fully allowable in case the project was approv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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