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TMI Blog2022 (8) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... hil Kumar , Judicial Member Appellant by : Shri James Kurian , CIT / DR Respondent by : Shri Vimal Desai , A. R. ORDER PER : T. R. SENTHIL KUMAR , JUDICIAL MEMBER : - ITA No. 1/Ahd/2020 has been filed by the Revenue against the order dated 01.10.2019 passed by the Commissioner of Income Tax (Appeals)-9, Ahmedabad, who confirmed the penalty levied u/s.271(1)(c) of the Act of the Income Tax Act, 1961 (hereinafter referred to as the Act ) relating to the Assessment Year (A.Y) 2012- 13. 2. The brief facts of the case is that the assessee is a local authority notified by the Government of Gujarat under Gujarat Town Planning and Urban Development Act, 1976. For the Assessment Year 2012-13, the assessee field its retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the following Grounds of Appeal: i. Whether the Ld. Commissioner of Income Tax (Appeals) has erred.in law and on the facts of the case in deleting the penalty levied of Rs.2,54,61,737/- relying on the decision of Hon. ITAT in ITA No.l02/Rjt/2016 without appreciating the findings of the Assessing Officer and Ld. CIT(Appeals) in the quantum appeals. ii. Whether the Ld. Commissioner of Income Tax (Appeals) has erred in law and on the facts of the case in not appreciating the findings of the AO in the penalty order, wherein the AO has clearly brought out the default of the assessee in furnishing the inaccurate and or concealing the particular of income. iii. Whether the Ld. Commissioner of Income Tax (Appeals) has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. As can be seen from the impugned order, the Tribunal has merely applied the decision of this court in the case of Ahmedabad Urban Development Authority v. Assistant Commissioner of Income Tax (Exemptions), (2017) 396 ITR 323 (Guj.) to the facts of the present case. It is not the case of the appellant that the Tribunal has wrongly applied the decision to the facts of the present case. The sole ground put forth is that the Special Leave Petition filed by the revenue against the said decision is pending before the Supreme Court. In the aforesaid premises, it is not necessary to set out the facts and contentions in detail. 5. For the reasons recorded in the decision of this court in the case of Ahmedabad Urban Development Authority v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 36(1)(iii) r.w.s. 14A of the Act was rejected by the A.O. and this order was upheld by the Hon. ITAT. The A.O. imposed penalty u/s 271(1)(c) for furnishing inaccurate particulars of income. The penalty was held to be illegal by the tribunal, since the factual details of income furnished by the assessee were found to be correct. The matter ultimately reached to Hon'ble Supreme Court which upheld the view of the tribunal by holding that mere making the claim which is not sustainable in law, by itself, would not amount to furnishing of inaccurate claim or furnishing inaccurate particulars regarding the income of the assessee. (B) CIT v/s. PHI Seeds India Ltd. (2008) 301 ITR 29, the Hon'ble Delhi High Court held that provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Income Tax (Appeals)-9, Ahmedabad, as against the Assessment order passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) relating to the Assessment Year (A.Y) 2015- 16. 12. For the Assessment Year 2015-16, the assessee field its return of income on 31.10.2015 declaring its total income at Rs. NIL. The return was selected for scrutiny assessment and the A.O. determined total income as Rs. 40,52,38,755/- by disallowing the claim of exemption u/s. 11(2) of Rs. 11,70,10,332/- and u/s. 11(1)(a) of Rs. 2,74,03,835/- and disallowance of capital expenditure of Rs. 1,87,30,868/- and three additions on account of income not offered for taxation of Rs. 5,94,01,490/-. 13. Aggrieved agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.2,74,03,835/- u/s.ll(l)(a) without considering the fact that once the proviso to section 2(15) of the Act is applicable to the assessee, the assessee forfeited all the exemption u/s. 11 12 of the Act? 4. Whether the Ld. Commissioner of Income Tax (Appeals) has erred in law and on the facts of the case in allowing capital expenditure of Rs.1,87,30,868/- without considering the fact that once the proviso to section 2(15) of the Act is applicable to the assessee, the assessee forfeited all the exemption u/s. 11 12 of the Act? 15. We have considered this issue at Paragraph 8 of this order, wherein assessee s own case Hon ble High Court of Gujarat dismissed Revenue s appeal in R/Tax Appeal No. 760 of 2019 and thus allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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