Itxa/2340/2011 Of Commissioner Of Income Tax -Thane I v. Shree Samarth Developers

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (LOD) NO.1044 OF 2011 The Commissioner of Income Tax-I, Thane ..Appellant. V/s. M/s. Shree Samarth Developers ..Respondent. Mr. Suresh Kumar for the appellant. None for the respondent. CORAM : J.P. DEVADHAR AND K.K. TATED, JJ.DATED : 4TH OCTOBER, 2011 P.C. :- 1.Whether the ITAT was justified in cancelling the penalty levied under Section 271(1)(c) of the Income tax Act, 1961, is the question raised in this appeal. 2.The assessment year involved herein is AY 2005-06. 3.It is not in dispute that as per the original approved plan, the assessee’s project was eligible for deduction under Section 80IB(10) of the Income Tax Act, 1961 (‘the Act’ for short). Accordingly, the assessee filed return of income in the assessment year in question by claiming deduction under Section 80IB(10) of the Act. However, the assessee felt that it would be more commercially viable to construct a larger percentage of commercial area and accordingly filed a revised plan for approval before the local authority. Anticipating that the revised plan would be approved, the assessee filed revised return on 6/11/2007 withdrawing the claim for relief under Section 80IB(10) of the Act because, as per the revised plan which was to be approved, the assessee was not entitled to Section 80IB(10) deduction. 5.It is not in dispute that the revised plan was ultimately approved on 14/5/2008. If the assessee were to file revised return after the revised plan was approved, then, the time for filing the revised return would have been over. In such a situation, the ITAT has held that in the facts and circumstances of the case, the assessee was justified in revising the return and withdraw the claim for deduction under Section 80IB(10) of the Act anticipating approval of the revised plan. In such a case, the Tribunal held that the assessee cannot be said to have concealed income or furnished inaccurate particulars of income and consequently, penalty under Section 271(1)(c) of the Act was not leviable. 6.We see no error in the order passed by the ITAT. The appeal is accordingly dismissed with no order as to costs. (K.K. TATED, J.) (J.P. DEVADHAR, J.)