The DCIT, Circle-3(1), Baroda V. Shri Hareshkumar A. Keshwani, Baroda

ITA 1033/AHD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8249 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 26-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMASHANAKAR PRASAD
• Keywords: Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BEN CH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER ) ITA. NO: 1033/AHD/2016 (ASSESSMENT YEAR: 2008-09) DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE- 3(1),BARODA V/S SHRI HARESHKUMAR A. KESHWANI, C/O. VIJAY STORES, SIDDHNATH ROAD, KHANDERAO MARKET CHAR RASTA, BARODA-390001 (APPELLANT) (RESPONDENT) PAN: AEXPK0363H APPELLANT BY : SHRI UMASHANAKAR PRASAD, S R. D.R. RESPONDENT BY : NONE ( )/ ORDER DATE OF HEARING : 02-11-201 7 DATE OF PRONOUNCEMENT : 14 -11-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-4, VADODARA DATED 16.12.2015 PERTAINING TO A.Y. 2008-0 9. ITA NO. 1033/AHD/2016 . A.Y. 2008 -09 2 2. THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE LD. C IT(A) ERRED IN DELETING THE LEVY OF PENALTY OF RS. 1085095/- IMPOSED U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 25.11.2010 FRAMED U/S. 143(3) OF THE ACT. THE RETURNED SHORT T ERM CAPITAL GAIN SHOWN BY THE ASSESSEE AT RS. 4147280/- WAS ASSESSED AS BUSINESS INCOME AND PENALTY U/S. 271(1)(C) OF THE ACT HAS BEEN LEVIED ACCORDINGLY. 4. BEFORE THE LD. CIT(A), IT WAS STRONGLY CONTENDED TH AT THE ASSESSEE HAD FURNISHED ALL THE EXPLANATIONS AND DETAILS IN SUPPORT OF ITS CLAI M OF SHORT TERM CAPITAL GAIN. HOWEVER, THE CONTENTIONS OF THE ASSESSEE WERE DISMI SSED BY THE A.O. WHO WAS OF THE FIRM BELIEF THAT THE ASSESSEE WAS TRADING IN SH ARES AND, THEREFORE, ANY GAINS EARNED BY THE ASSESSEE HAS TO BE TAXED UNDER THE HE AD BUSINESS INCOME. IT WAS FIRMLY STATED THAT THE ASSESSEE HAS FURNISHED ALL T HE DETAILS RELATING TO THE SHARE TRANSACTIONS AND, THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF THE INCOME LEADING TO CON CEALMENT OF INCOME. THE LD. CIT(A) WAS CONVINCED WITH THE CONTENTION OF THE ASS ESSEE AND THE PENALTY SO LEVIED WAS DELETED. 5. BEFORE US, THE LD. D.R. STRONGLY SUPPORTED THE FIND INGS OF THE A.O. NONE APPEARED ON BEHALF OF THE ASSESSEE AND WE THEREFORE DECIDED TO PROCEED EX PARTE. 6. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE IN HIS RETURN OF INCOME HAS FURNISHED COMPLETE DETAILS RELATING TO THE SALE TRA NSACTIONS OF SHARES. WE FURTHER FIND THAT EVEN DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE FURNISHED ALL THE RELATED DOCUMENTS TO SUPPORT HIS CLAIM OF SHORT TERM CAPITAL GAIN. HOWEVER, THE A.O. HAS SIMPLY CHANGED THE HEAD OF INCOME FROM CAPITAL ITA NO. 1033/AHD/2016 . A.Y. 2008 -09 3 GAINS TO BUSINESS INCOME WHILE ASSESSING THE TOTAL INCOME OF THE ASSESSEE. IN OUR CONSIDERED OPINION, ON THE GIVEN SET OF FACTS, IT C ANNOT BE SAID THAT THE ASSESSEE HAS FURNISHED ANY INACCURATE PARTICULARS OF INCOME THER EBY CONCEALING HIS INCOME. THE LD. CIT(A) HAS RIGHTLY DELETED THE PENALTY. NO INTE RFERENCE IS CALLED FOR. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 14 - 11- 2 017. SD/- SD/- (S.S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED: 14/11/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AH MEDABAD