Itxa/956/2017 Of Pr Commissioner Of Income Tax 14 v. Sonu Realtors Pvt Ltd

Digitally signed1/4by GAURIGAURIAMITGAEKWADAMITDate:GAEKWAD2021.10.1414:40:45IN THE HIGH COURT OF JUDICATURE AT BOMBAY+0530ORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO.956 OF 2017by GAURIGAURIAMITGAEKWADAMITDate:GAEKWAD2021.10.1414:40:45IN THE HIGH COURT OF JUDICATURE AT BOMBAY+0530ORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO.956 OF 2017 Pr. Commissioner of Income Tax – 14 ….Appellant V/s. Sonu Realtors Private Limited ….Respondent ---- Mr. Suresh Kumar for appellant.Mr. R.S. Padvekar a/w. Mr. Tanzil Padvekar for respondent. ---- CORAM : K.R.SHRIRAM, & AMIT B. BORKAR, JJ. DATED : 11[th] OCTOBER 2021 P.C.: 1Respondent is a company engaged in the business ofconstruction. For the Assessment Year 2008-2009, respondent filed itsreturn of income at Rs.51,34,740/- after claiming deduction underSub-Section 10 of 80 IB (Deduction in respect of profits and gains fromcertain industrial undertakings other than infrastructure developmentundertakings) of the Income Tax Act, 1961 (the said Act) amounting toRs.13,72,33,540/-. Subsequently, Commissioner of Income Tax (CIT) passedorder under Section 263 of the said Act holding that respondent companywas taxable under the provisions of Section 115JB (Special provision forpayment of tax by certain companies) of the said Act. Respondent hadagreed for the revision of the assessment pursuant to revision order underSection 263 following which the Assessing Officer passed order underSection 143 (Assessment) of the said Act assessing the income ofrespondent under Section 115JB. Respondent also paid tax under Section 115JB. The Assessing Officer, however, later levied penalty under Section271 (1) (c) (………. any person - has concealed the particulars of hisincome or furnished inaccurate particulars of such income or) of the saidAct on the ground that (a) respondent had made an attempt to reduce itstax liability by claiming wrong deduction; and (b) respondent committed adefault of not computing the book profit under Section 115JB as requiredmandatorily by the provisions of Act. 2Against this order, an appeal was preferred by respondent andthe Commissioner of Income Tax (Appeals) by an order dated 26[th] May2015 set aside the order of the Assessing Officer imposing penalty onrespondent. By an order dated 20[th] July 2016, the Income Tax AppellateTribunal (ITAT) dismissed the appeal of the Revenue. Against this order, thepresent appeal has been filed and the substantial question of law proposedis as under : “a) Whether on the facts and in the circumstances of the caseand in law, the Hon’ble ITAT was right in deleting the penaltyof Rs.1,63,71,320/- levied u/s 271(1) (c) of the Act for nonfurnishing of particulars of MAT calculation u/s 115JB in thereturn of income without appreciating the fact that the taxliability on the Book Profit computed u/s 115JB of the IT Actis more than the tax liability computed on the total incomecomputed under the normal provisions of the IT Act.” 3Therefore, appellant is restricting its question of law only with regard to the imposition of penalty by the Assessing Officer on the groundthat respondent committed a default of not computing the book profitunder Section 115JB. The relevant paragraph in the Assessing Officer’s order reads as under : It is also pertinent to mention here that the assessee companyhas been committing the same default of not computing thebook profit u/s 115JB, as required mandatorily by theprovisions of Act, for the previous years and subsequent yearsas well. The book profit in the case of the assessee forsubsequent years was also not offered by the assesseecompany to tax and the same was brought to tax by the AOin the assessment orders passed for subsequent years. Thisclearly shows that the assessee has been committing defaultfor year after year with regard to compliance to clear andunambiguous provisions of the Act and has been avoidingpayment of due taxes. The relevant paragraph in the Assessing Officer’s order reads as under : It is also pertinent to mention here that the assessee companyhas been committing the same default of not computing thebook profit u/s 115JB, as required mandatorily by theprovisions of Act, for the previous years and subsequent yearsas well. The book profit in the case of the assessee forsubsequent years was also not offered by the assesseecompany to tax and the same was brought to tax by the AOin the assessment orders passed for subsequent years. Thisclearly shows that the assessee has been committing defaultfor year after year with regard to compliance to clear andunambiguous provisions of the Act and has been avoidingpayment of due taxes. 4Even the question of law as proposed states “for non furnishingof particulars of MAT calculation u/s 115JB in the return of income ”. Thefact is the particulars have infact been furnished. Otherwise how could, inthe order passed under Section 263 of the Act, the Commissioner of IncomeTax state “............ After going through the above mentioned assessmentorder and the records of the assessee, it was observed that primafacie theassessment order suffered, inter alia, from the following errors ............, i.e.,the total income was assessed under the normal provisions and the bookprofit of Rs.14,44,95,320/- was not assessed as income under Section115JB of the Income Tax Act, 1961..”. If he has to assess the book profit ofRs.14,44,95,320/-, certainly the particulars of MAT calculation must havebeen available before the concerned officer. In any event, if such particulars,which according to Mr. Suresh Kumar are mandatorily to be furnished bythe assessee, which is a company, before the original assessment order waspassed, the Assessing Officer would have certainly called for those particulars from the assessee. In any event, even assuming for a momentthat such particulars were not furnished but only the return of income wasfiled showing the income tax payable on the total income as computedunder the said Act, that cannot amount to concealment of particulars ofincome or furnish inaccurate particulars of income. Even the attempt, if anyas alleged, to reduce tax liability by claiming wrong deduction cannotamount to concealing the particulars of income or furnishing inaccurateparticulars of such income. 5In our view, the Tribunal has not committed any perversity orapplied incorrect principles to the given facts and when the facts andcircumstances are properly analysed and correct test is applied to decide theissue at hand, then, we do not think that question as pressed raises anysubstantial question of law. 6The appeal is devoid of merits and it is dismissed with no orderas to costs. (AMIT B. BORKAR, J.) (K.R. SHRIRAM, J.)