AI Drafter 
TaxTMI 
TaxTMI 
2013 (11) TMI 463
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....-05 in its case by the Assessing Officer (A.O.) vide order dated 24.03.2009. 2.1. Though the appeal raises as many as five grounds, the same in substance only agitates the impugned penalty levied in the sum of Rs.17,87,820/-. It would be relevant to recount the background facts of the case, which find mention both in the assessment order (dated 29.11.2006) as well as the penalty order by the A.O. The assessee, a partnership firm engaged in the business of contractors, filed its return of income on 01.11.2004, i.e., a due date, at an income of Rs. Nil. The same bore a deduction u/s.80-IB(10) of the Act at Rs.79,83,468/-. A survey u/s.133A of the Act was conducted at the assessee's business premises at Samuel Street, Vadgadi, Mumbai on 30.....
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.... during the year 1986-87. Even for argument sake, if each Wing was to be treated as a separate project, the land available for each Wing would stand reduced to less than 1 acre. The assessee filed an appeal before the first appellate authority, challenging the non acceptance of its 'revised return' as a valid return u/s. 139(5) of the Act, claiming that there was nothing adverse found or detected by the Revenue, and that the said revision, withdrawing the claim u/s. 80-IB(10), was only to buy peace and avoid litigation. The first appellate authority, vide its order dated 03.07.2007 (PB pgs. 61 - 63), was of the view that the matter is not appealable inasmuch as the same is only relevant in the context of initiation of penalty u/s. 271(1)(c)....
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....inasmuch as the area per Wing would fall below one acre, which represents a basic, qualifying condition for claim u/s.80-IB(10). As such, the assessee's claim of having withdrawn its claim only to secure peace with the Department, relying on the decision by the hon'ble apex court in the case of CIT vs. Suresh Chandra Mittal [2001] 251 ITR 9 (SC), is not maintainable. The decision in the case of Telebuild Construction (P) Ltd. vs. ACIT (in ITA No.1164/Mum/2006), also relied upon by the assessee, was also found by him to be distinguishable, as the matter had been taken by the assessee u/s.264. In fact, the assessee had not even appealed against the disallowance of its claim; rather, preferring to withdraw it in view of its untenability. The d....
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....poration of Greater Bombay on 07.08.1999, with the corresponding work order for construction of Wings C & D being issued on 27.08.2001, which specifies the date of commencement of work as 10.08.2001 (PB pgs. 27, 112). It was on account of this revision in the plan that the TDR stood enhanced to a large extent, so that while the Wings E, F & G of the project were for ground floor + 4 floors, the other Wings, i.e., A to D, were for ground + 7 floors. The Wings A and B were constructed and sold during the previous years relevant to the A.Ys 2001-02 and 2002-03. The assessee having suffered losses and also having sufficient brought forward losses, there was no occasion to claim deduction u/s.80-IB(10), which arose for the first time only for th....
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....was, in the course of the assessment proceedings u/s.143(3), which commenced with the service of notice u/s.143(2) dated 18.07.2005 (PB. pg. 38). That is not to say that the assessee's claim per its original return, with reference to which only the penalty for concealment or furnishing inaccurate particulars of income is to be considered, becomes valid, but only that there is nothing to brush aside or cast the revision as not bona fide. The assessee's claim, without doubt, does not merit acceptance. This is for the reason that, notwithstanding the revalidation of the approved plans and issue of commencement certificate in respect of Phase 2 of the project, it is only a continuation of the same project, though constructed later. Being an app....
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....essee can show a reasonable cause, and which we find it to have in the instant case. This is not for the reason either of any confusion with regard to the area of the project or the date of its commencement, but the very fact that the construction of the Wings A to D started much subsequent to the other part of the project, so that it was considered as Phase 2 of the project, being even titled separately as 'New Haridas Park'. 4.3. It is, thus, the second Phase of the Project, construction of which commenced subsequent to 01.10.1998, which, in our opinion, forms a reasonable ground for the assessee in considering the profits in its respect as qualifying for deduction u/s.80-IB(10). It may be appreciated and borne in mind that, apart from....