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Income Tax Appellate Tribunal - Indore

M/S Khurana Construction Pvt. Ltd., ... vs Deputy Commissioner Of Income Tax ... on 28 January, 2022

             IN THE INCOME TAX APPELLATE TRIBUNAL,
                       INDORE BENCH, INDORE
                          (Convened through Virtual Court)

        BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR
         & SHRI MANISH BORAD, ACCOUNTANT MEMBER

               आयकर अपील सं./I.T.A. No. 663/Ind/2017
              ( नधा रण वष  / Assessment Year : 2010-11)

     Khurana Constructions            बनाम/ Dy. Commissioner of
     Pvt. Ltd.                         Vs.  Income Tax
     8, Yashwant Niwas Colony,               Circle-5(1), Aayakar
     Indore - 452001                         Bhawan, Indore-452001
      थायी ले खा सं . /जी आइआर सं . /PAN/GIR No. : AAACK7172J
          (अपीलाथ  /Appellant)         ..        (  यथ  / Respondent)


       अपीलाथ  ओर से/Appellant by : Shri Harsh Vijayvargiya,
                                    A.R.
         यथ  क  ओर से / Respondent Shri Amit Soni, Sr. D.R.
       by :

          सन
           ु वाई क  तार ख / Date of
                                           22/12/2021
          Hearing
          घोषणा क  तार ख /Date of
                                          28 /01 /2022
          Pronouncement

                                    ORDER

PER MAHAVIR PRASAD, JM:

The appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals)-III, Indore ('CIT(A)' in short) vide Appeal No. IT-422/15-16, dated 26.07.2017 arising out of penalty order dated 29.07.2013 passed by the Assessing Officer (AO) under s. 271(1)(c) of the Income Tax Act, 1961 (the Act) concerning AY 2010-11.

2. The assessee has raised following ground as under:

Pvt. Ltd. vs. DCIT] A.Y. 2010-11 -2- "1. That on the facts and circumstances of the case Ld. AO has wrongly levied and Ld. CIT(Appeals)-III, Indore has erred in affirming the order of Ld. AO for levying a penalty of Rs.7,00,000/- U/s 271(1)(c) of the Act against the assessee."

3. Facts of the case are that assessee is a company engaged in contract business and BOT operator. The only issue involved in this appeal is penalty of Rs.7,00,000/- levied under S. 271(1)(c) of the Act. The learned AO has levied and learned CIT(A) has confirmed the appeal on the disallowance of Rs.19,69,6956/- made on disallowance of deduction under S.80IA(4) and addition for rent on plant and machinery of Rs.1,05,909/-. The disallowance made under S.80IA(4) of the Act includes Rs.13,59,396/- on account of interest from bank, Rs.3,85,000/- on account of rent on machinery, Rs.96,430/- on account of income tax refund and balance on account of sundry balance written off. The addition of Rs.1,05,909/- on account of rent on plant and machinery was made on the basis of perusal of Form No.26AS.

4. Against the order of penalty, assessee preferred first statutory appeal before the learned CIT(A) who confirmed the action of the AO and dismissed the appeal of assessee.

5. Now, the assessee came before us.

6. We have gone through the relevant record and impugned order. The assessee claimed deduction under S.80IA(4) of the Act but the assessee could not submit the statutory certificate of the CA before the lower authorities. But, the assessee has demonstrated that it has filed audit report duly supported by the certificate and same certificate has been certified by the CA and same is part of the paper book at page nos. 49 & 50. So far addition on account of Form No.26AS disclosure of the receipt of the particular amount is concerned, the learned AR cited a co-ordinate bench judgment in the case of Praveen Kumar Jain vs. ACIT 26 ITRJ 347 wherein it is held that addition on the basis ITA No. 663/Ind/2017 [Khurana Constructions Pvt. Ltd. vs. DCIT] A.Y. 2010-11 -3- of Form No.26AS disclosure is not liable for penalty. In the case of Price Waterhouse Coopers Private Limited vs. CIT(A) & Another wherein Hon'ble Apex Court held that if the assessee filing the statement of particulars with return of income showing the provisions towards gratuity is not allowable, but the deduction was claimed in the return. It is the silly mistake and no penalty can be levied, meaning thereby, if the assessee has made claim which was not allowed by the Revenue on such amount penalty cannot be imposed and so far remaining amounts are concerned, it was submitted by the assessee that all relevant details were submitted before the lower authorities and same are part of paper book. In the case of Dilip N. Shroff vs. Jt.CIT [2007] 6 SCC 329, Hon'ble Supreme Court held that in order to attract the penalty under S.271(1)(c) of the act mens rea was necessary, as according to the Court, the word 'inaccurate' signified a deliberate act or omission of behalf of the assessee. In our considered opinion, the assessee has discharged it onus and in view of the above discussion and respectfully following the Hon'ble Apex Court's judgment and in parity with the ITAT order, we delete the penalty.

7. In the result, appeal filed by the assessee is allowed.

                  This Order pronounced in Open Court on    28 /01/2022



         Sd/-                                                      Sd/-
    (MANISH BORAD )                                       (MAHAVIR PRASAD)
  ACCOUNTANT MEMBER                                        JUDICIAL MEMBER
 Ahmedabad: Dated 28/01/2022

 S.K.SINHA
 आदे श क    त ल प अ े षत / Copy of Order Forwarded to:-
 1. राज व / Revenue
 2. आवेदक / Assessee
 3. संबं)धत आयकर आयु+त / Concerned CIT
 4. आयकर आय+
           ु त- अपील / CIT (A)

5. /वभागीय 2त2न)ध, आयकर अपील य अ)धकरण, अहमदाबाद / DR, ITAT, Ahmedabad ITA No. 663/Ind/2017 [Khurana Constructions Pvt. Ltd. vs. DCIT] A.Y. 2010-11 -4-

6. गाड8 फाइल / Guard file.

By order/आदे श से, A ssi sstant Regi str ar, I.T.A.T., In dor e