The DCIT, Circle-5, Ahmedabad V. Shri Hirenbhai K.Patel, Ahmedabad

ITA 1137/AHD/2008

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1429 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-05-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 31-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: H C SHAH
• Keywords: Capital asset; Cost of acquisition; Assessment record; Notional interest
• Section: 143(3); 142(1); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI R. P. TOLANI, JM, & SHRI MANISH BORAD , AM. ITA NO.1137/AHD/2008 ASST. YEAR: 2002-03 DCIT, CIRCLE-5, AHMEDABAD. VS. HIRENBHAI K. PATEL, NIRMA HOUSE, ASHRAM ROAD, AHMEDABAD. APPELLANT RESPONDENT PAN AGGPP2907H APPELLANT BY SHRI R. I. PATEL, CIT,DR RESPONDENT BY SHRI H. C. SHAH, AR DATE OF HEARING: 31.5.2016 DATE OF PRONOUNCEMENT: 08/6/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS APPEAL OF REVENUE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A)-XI, AHMEDABAD, DATED 18.1.2008 IN APPEAL NO. CIT(A)- XI/125/07-08 PASSED AGAINST ORDER U/S 271(1)(C) OF THE IT ACT, 1961 (IN SHORT THE ACT) FOR ASST. YEAR 2002-03 DTD.26.3. 2007 BY ACIT, CIRCLE-5, AHMEDABAD. REVENUE HAS RAISED THE FOLLOWI NG GROUNDS :- 1. THE LD, COMMISSIONER OF INCOME TAX (A) II, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING PENALTY OF RS . 4,31,34,768/- LEVIED UNDER SECTION 271(L)(C) OF THE INCOME TAX ACT, 1961. ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A)-II , AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CO MMISSIONER OF INCOME TAX (A) - II F AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. BRIEFLY STATED THE FACTS OF THE CASE AS CULLED O UT FROM THE ASSESSMENT RECORD ARE THAT ASSESSEE IS AN INDIVIDUA L WHO HAS FILED HIS RETURN OF INCOME FOR ASST. YEAR 2002-03 ON 9.8. 2002 DECLARING TOTAL INCOME AT RS.27,07,370/-. THE CASE WAS SELECT ED FOR SCRUTINY ASSESSMENT AND NOTICE U/S 143(2) OF THE ACT WAS ISS UED ON 6.1.2003 FOLLOWED BY NOTICE U/S 142(1) OF THE ACT. ASSESSMEN T WAS COMPLETED U/S 143(3) OF THE ACT ON 23.3.2005 BY ASSESSING THE INCOME AT RS.4,97,27,848/- AFTER MAKING FOLLOWING ADDITIONS O F RS.4,70,32,830/-: PARTICULARS QUANTUM INTEREST INCOME ON TRANSFER OF DDBS OF NIRMA LTD. 11,900,000 SHORT TERM CAPITAL GAIN ON TRANSFER OF DDBS OF NIRMA LTD. 30,135,849 ACCRUED INTEREST ON DDBS OF NIRMA LTD. 4,883,858 ACCRUED INTEREST ON OFCPNS OF NIRMA INDUS. LTD. 113,123 TOTAL 4,70,32,830/- 3. AGAINST THE ADDITIONS BY LD. ASSESSING OFFICER, ASSESSEE WENT IN APPEAL BEFORE LD. CIT(A) BUT THE SAME WAS DISMISSED . THEREAFTER ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 3 APPEAL WAS PREFERRED BY ASSESSEE BEFORE THE TRIBUNA L, AHMEDABAD WHERE ASSESSEE GOT PART RELIEF. 4. ON COMPLETION OF ASSESSMENT PROCEEDINGS U/S 143( 3) OF THE ACT PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE I NITIATED BY LD. ASSESSING OFFICER WHICH GOT CRYSTALLIZED AFTER THE ORDER OF LD. CIT(A) CONFIRMING ALL THE ADDITIONS MADE BY LD. ASSESSING OFFICER. ON 26.3.2007 PENALTY ORDER U/S 271(1)(C) OF THE ACT WA S FRAMED BY APPLYING MAXIMUM PENALTY OF RS.4,31,34,768/- @ 300% WHICH WAS CANCELLED BY LD. CIT(A) VIDE HIS ORDER DATED 18.1.2 008. 5. AGGRIEVED, REVENUE IS NOW IN APPEAL BEFORE THE T RIBUNAL. THROUGH THIS APPEAL REVENUE HAS RAISED THREE GROUND S OUT OF WHICH SOLE AND SUBSTANTIAL GROUND IS NO.1 WHICH HAS BEEN RAISED CHALLENGING THE ACTION OF LD. CIT(A) DELETING PENAL TY OF RS.4,31,34,768/- LEVIED U/S 271(1)(C) OF THE ACT. W E OBSERVE THAT PENALTY OF RS.4,31,34,768/- WAS LEVIED @ 300% OF TH E TAX ON THE ADDITIONS MADE BY LD. ASSESSING OFFICER AT RS.4,70, 32,830/- RELATING TO FOLLOWING :- PARTICULARS QUANTUM INTEREST INCOME ON TRANSFER OF DDBS OF NIRMA LTD. 11,900,000 SHORT TERM CAPITAL GAIN ON TRANSFER OF DDBS OF NIRMA LTD. 30,135,849 ACCRUED INTEREST ON DDBS OF NIRMA LTD. 4,883,858 ACCRUED INTEREST ON OFCPNS OF NIRMA INDUS. LTD. 113,123 ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 4 TOTAL 4,70,32,830/- WE FURTHER OBSERVE THAT LD. CIT(A) DELETED THE PENA LTY U/S 271(1)(C) OF THE ACT ON THE BASIS OF THE DECISION OF THE CO-ORDI NATE BENCH IN THE CASE OF ASSESSEE ON QUANTUM OF ADDITION IN ITA NO.1 252/AHD/2006 WHICH WAS SUBSTANTIALLY DELETED. WE FURTHER OBSERVE THAT DURING THE COURSE OF APPELLATE PROCEEDINGS U/S 271(1)(C) OF TH E ACT BEFORE LD. CIT(A) RESPONDENT MADE FOLLOWING SUBMISSIONS BEFORE LD. CIT(A):- 2.1.2. DURING THE COURSE OF APPEAL PROCEEDINGS OBJE CTING TO THE A.O'S ACTION, THE A. R. HAS FILED WRITTEN SUBMISSIONS. THE SAME I S REPRODUCED HEREUNDER - FOR CONVENIENCE SAKE :- 'THE ID. AO HAS LEVIED MAXIMUM PENALTY OF RS. 4,31, 34,7687- @ 300% OF TAX SOUGHT TO BE EVADED VIDE PENALTY ORDER DATED 26.3.2 007. THE APPELLANT FURNISHED THE RETURN OF INCOME SHOWING INCOME OF RS . 27,07,370. THE LONG TERM CAPITAL GAIN WAS WORKED OUT TO RS, 4,70,20,482 . AFTER MAKING INVESTMENT IN SPECIFIED BONDS, DEDUCTION U/S. 54EC WAS CLAIMED FOR RS. 4,70,20,482. THE ASSESSMENT U/S. 143(3) WAS FINALIZED VIDE ORDER DAT ED 23.3.2005. THE CAPITAL GAIN WAS TREATED AS SHORT TERM CAPITAL GAIN AFTER C ONSIDERING THE ADDITION IN THE EARLIER ASSESSMENT YEAR. MOREOVER, THE NOTIONAL INTEREST WAS ADDED ON THE INVESTMENT AFTER CONSIDERING CIRCULAR NO.2 OF 2002 DATED 15.02.2002. THE HON'BLE CIT(A) DISMISSED THE APPEAL AND THE APP EAL IS PENDING BEFORE HON'BLE TRIBUNAL. ..... THE HON'BLE TRIBUNAL PASSED ORDER IN THE CASE OF KI SAN DISCRETIONARY FAMILY TRUST VIDE ITA NO, 1850/AHD/2007 DATED 02-11-2007 F OR A. Y. 2003-04. THE SIMILAR ADDITION MADE AFTER INVOKING THE SAID CIRCU LAR, WAS DELETED. COPY OF THE SAID ORDER IS ENCLOSED MARKED ANNEXURE-E. THE HON'BLE TRIBUNAL HELD AS UNDER :- (1) THE APPELLANT FOLLOWED CASH METHOD OF ACCOUNTIN G. : (2) THE CIRCULAR CANNOT BIND THE ASSESSEE. (3) THE REVENUE CANNOT IMPOSE CIRCULAR. ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 5 (4) THE CIRCULAR ISSUED BY BOARD, EVEN IF BENEVOLEN T ARE NOT BINDING TO THE APPELLATE AUTHORITY. (5) THE PRESS NOTE DATED 20-03-2002 HAD CLARIFIED T HE DATE OF APPLICABILITY OF THAT CIRCULAR. (6) THE PRESS NOTE IS NOT CONTRADICTORY TO CIRCULAR NO.2 OF 2002. (7) THE PRESS NOTE WAS BINDING ON REVENUE. (8) THE INCOME CANNOT BE ADDED IN RESPECT OF SECURI TIES PRIOR TO 15-02-2002. (9) THE INCOME OFFERED UNDER PROTEST SHOULD BE DELE TED FROM THE ASSESSMENT. IN VIEW OF THIS, THE ADDITION MADE IN OUR CASE ARE COVERED BY THE ABOVE REFERRED DECISION OF HON'BLE TRIBUNAL. WITHOUT PREJUDICE TO THIS, IT IS FURTHER SUBMITTED THAT THIS IS A LEGAL CONTROVERSY. THE APPELLANT HAD NOT CONCEALED THE INCOME. THE APP ELLANT HAD DISCLOSED ABOUT THE INVESTMENT IN BONDS VIDE NOTE NO.4 OF THE RETURN OF INCOME. MOREOVER, THE INVESTMENT IN REC BOND U/S. 54EC WAS DISCLOSED VIDE NOTE NO.3 OF RETURN OF INCOME. THE APPELLANT HAD DISCLOS ED NECESSARY FACTS IN THE RETURN OF INCOME. IN THE CIRCUMSTANCE, THE PENALTY LEVIED U/S. 271(1) (C) OF I. T. ACT SHOULD BE DELETED. IN THIS RESPECT, RELIANCE IS PLACED ON THE DECISION OF HON'BLE TRIBUNAL IN THE CASE OF NIRMA CHEMICAL WORKS LTD. WHEREIN TH IS ISSUE WAS DISCUSSED AT LENGTH VIDE TRIBUNAL ORDER NO. LTA/220/AHD/2007 DAT ED 20-08-2007. COPY ENCLOSED MARKED ANNEXURE-F./ THE ID. AO HAS GROSSLY ERRED IN CHARGING MAXIMUM PE NALTY @ 300% FOR RS. 4,31,34,768. UNDER THE ACT, PENALTY SHOULD BE LEVIE D RANGING FROM MINIMUM 100% TO MAXIMUM 300% HENCE, IN VIEW OF THE ABOVE, MAY WE REQUEST YOUR HO NOUR TO ALLOW THIS APPEAL FOR WHICH ACT OF KINDNESS, WE SHALL EVER REMAIN GRA TEFUL TO YOUR HONOUR.' FURTHER WE OBSERVE THAT LD. CIT(A) DELETED THE PENA LTY IMPOSED U/S 271(1)(C) OF THE ACT BY OBSERVING AS UNDER :- 2.2.5. THE RELEVANT PARAS OF THE ITAT ORDER PAGE NO .65 IN CASE OF KISAN DISCRETIONARY FAMILY TRUST WHICH IS CITED AS ABOVE IS REPRODUCED FOR CONVENIENCE SAKE AS FOLLOWING.:- ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 6 'IN OTHER WORDS, WE ARE OF THE OPINION THAT SO FAR AS ASSESSEE'S CASE IS CONCERNED, IT HAS TO BE HELD TO HAVE FOLLOWED CASH SYSTEM OF ACCOUNTING WITH EFFECT FROM 01-04-2001. SINCE WE HAVE ACCEPTED THE ASSESSEE'S CHANGE IN SYS TEM OF ACCOUNTING AS 'CASH SYSTEM' FROM 'MERCANTILE SYSTEM', THERE IS NO QUESTION OF TAXING THE INTEREST OR ANY OTHER INCOME FROM SO-CALLED DEEP DI SCOUNT BONDS INCLUDING ON ACCRUAL BASIS AND, THEREFORE, DIRECT THE ASSESSING OFFICER TO DELETE AIL SUCH ADDITIONS. TO BE SPECIFIC, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.77,95,691/-. PAGE NO.79 OF THE ABOVE ORDER (LAST PARA). THE REVENUE'S STAND THAT CIRCULAR NO.2 OF 2002 IS R ETROSPECTIVE I.E. APPLICABLE TO BONDS PURCHASED PRIOR TO THIS CIRCULAR ALSO, CAN NOT BE SUSTAINED BECAUSE THIS CIRCULAR IS SILENT WITH RESPECT TO CHARGEABILI TY OF INCOME EARNED PRIOR TO DATE OF THIS CIRCULAR; MEANING THEREBY THAT IN CASE WHERE THE BONDS HAD BEEN PURCHASED PRIOR TO THIS CIRCULAR, THE INCOME HAVING BEEN ARISEN (IN THE LIGHT OF THIS CIRCULAR) REMAINED UNTAXED. THE CIRCULAR, THER EFORE, SPEAKS OF DIFFERENT TREATMENT TO THE INCOME ACCRUED FOR EARLIER YEARS A ND TO ACCRUE IN SUBSEQUENT YEAR. CONSEQUENTLY, THIS CIRCULAR CANNOT BE CONSIDE RED TO BE VALID IN THE EYES OF LAW. PAGE NO.80 { PARA MI. 33.1) WITHOUT PREJUDICE TO OUR AFORESAID VIEW, THAT THE C IRCULAR NO.2 OF 2002 WAS IN VALID AND COULD NOT BIND THE ASSESSEE, WE ARE, FURT HER OF THE OPINION THAT IN VIEW OF LANGUAGE OF PARAGRAPH NO.3 OF THIS CIRCULAR AND THE PRESS NOTE/RELEASE DATED 20-03-2002, THE CIRCULAR NO.2 OF 2002 WAS NOT APPLICABLE TO THE DDBS PURCHASED/SUBSCRIBED BEFORE 15.02.2002 AND, THEREFORE, ADDITION ON ACCOUNT OF INCOME FROM SUCH BOND IS DELETED. PAGE NO.91 (PARA NO.41) AFTER CAREFUL CONSIDERATION OF THE DECISION (SUPRA) WE ARE OF THE OPINION THAT SO FAR INTEREST ON OFCPN OF NIRMA INDUSTRIES LTD., ADMITTEDLY, THERE BEING NO AGREEMENT FOR PAYMENT OF INTEREST ON YEARLY BASIS, THE SAME WAS NOT TAXABLE EITHER ON MERCANTILE BASIS OR ON CASH BASIS. 2.2.6 THEREFORE, HAVING VERIFIED THE FACTS AND CIRC UMSTANCES OF THE CASE, I FIND HE HONOURABLE ITAT HAD DECIDED IN FAVOUR OF TH E APPELANT'S CASH METHOD OF ACCOUNTING AS IT IS SEEN IN CASE OF KISAN DISCRE TIONARY FAMILY TRUST VIDE ITA NO. 1850/AHD/2007 DATED 2-11-2007. THEY HAVE AL SO DISAGREED IN RESPECT OF CHARGING INTEREST ON ACCRUAL BASIS. THEY HAVE ALSO HELD THAT THE BOARD'S CIRCULAR CANNOT BE APPLIED RETROSPECTIVELY. THEREFORE, I FIND THAT THE ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 7 ISSUES INVOLVED ARE DEBATABLE SINCE THE APPELLANT H AS BASICALLY DISCLOSED ALL THE FACTS. AS IT IS SEEN IN ABOVE CITED CASE, THE A . O. AS WELL AS CIT(A) DID NOT AGREE WITH THE METHOD OF ACCOUNTING OF THE INCOME O F THE BONDS. HOWEVER, THE HON'BLE ITAT, AHMEDABAD HAS ACCEPTED THE CASH M ETHOD OF ACCOUNTING IN CASE OF INCOME DERIVED FROM BONDS. THEREFORE, TH E ISSUES ARE DEBATABLE, I FIND THAT THE APPELLANT CANNOT BE TREATED AS A DEFA ULTER FOR ALLEGED CONCEALMENT WHICH ATTRACTS PENALTY UNDER SECTION 27 1(1)(C) OF I. T. ACT. THEREFORE, ORDER LEVYING THE PENALTY BY THE A. O. I S HEREBY CANCELLED. 6. FROM GOING THROUGH THE ORDER OF THE CO-ORDINATE BENCH IN ITA NO.1252/AHD/2006 FOR ASST. YEAR 2002-03 WE FIND THA T THE CO-ORDINATE BENCH HAS DELETED ALL THE ADDITIONS MADE BY LD. ASS ESSING OFFICER WHICH PAVED THE WAY FOR LD. CIT(A) TO DELETE THE PE NALTY U/S 271(1)(C) OF THE ACT. THERE ARE SERIES OF DECISION OF THE CO- ORDINATE BENCH DEALING WITH SIMILAR FACTS RELATING TO THE QUESTION OF IMPOSING PENALTY U/S 271(1)(C) OF THE ACT WHEN THE QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL AND IN ALL SUCH CASES IT IS HELD TH AT THE PENALTY U/S 271(1)(C) OF THE ACT SHOULD NOT BE IMPOSED ON THE A SSESSEE. FURTHER WE FIND IN THE GROUP CASES, WE HAVE RECENTLY DEALT WITH SIMILAR FACTS IN THE CASE OF DCIT VS. PUNITABEN K. PATEL IN ITA NO.2 005/AHD/2008 FOR ASST. YEAR 2002-03 WHEREIN VIDE OUR ORDER DATED 3/5 /2016 WE HAVE HELD THAT ASSESSEE SHOULD NOT BE VISITED WITH PENAL TY U/S 271(1)(C) OF THE ACT AND THE RELEVANT PORTION OF ITA NO.2005/AHD /2008 (SUPRA) IS REPRODUCED BELOW :- 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THROUGH THIS APPEAL REVENUE IS AGGRIEVED WITH THE ORDER OF LD. CIT(A) DELETING THE PENALTY OF RS. 22,42,000 /- WHICH WAS IMPOSED U/S 271(1)(C) OF THE ACT ON THE FOLLOWING A DDITIONS :- 1. ADDITION ON ACCOUNT OF ACCRUED INTEREST ON OFCPNS OF NIRMA INDUS. LTD. RS.50,185/- ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 8 2 ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF DDBS OF NIRMA LTD. RS.8,79,320/- 3 ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON THE TRANSACTION OF STRIPS OF TATA FINANCE LTD. RS.53,49,000/- TOTAL RS.62,78,505 ADDITION OF RS.50,185/- ( ACCOUNT OF ACCRUED INTEREST ON OFCPNS OF NIRMA INDUSTRIES LTD.) 9. WE OBSERVE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF IT WAS BROUGHT TO THE NOTICE OF LD. ASSESSIN G OFFICER THAT ASSESSEE HAS FILED HER RETURN OF INCOME ON CASH MET HOD OF ACCOUNTING AND DUE TO THIS REASON THE INTEREST OF R S.50,185/- ON OFCPNS OF NIRMA INDUS. LTD. WAS NOT SHOWN IN THE RE TURN OF INCOME. CERTAINLY IN SUCH SITUATION THERE CANNOT BE A CASE OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF S UCH INCOME WHICH ARE NECESSARY FOR IMPOSITION OF PENALTY U/S 271(1)( C) OF THE ACT. 10. WE FURTHER OBSERVE THAT IN ITA NO.1255/AHD/2006 FOR ASST. YEAR 2002-03, VIDE ORDER DATED 21.06.2013, THE TRIB UNAL HAS DEALT WITH THE GROUNDS OF ASSESSEE FOR THE IMPUGNED ADDIT IONS OF RS. 8,79,320/- & RS.53,49,000/- MADE LD. ASSESSING OFFICER AND THE GROUNDS HAVE BEEN ALLOWED BY ADJUDICATING THE ISSUE S AS UNDER :- ADDITION OF RS. RS.8,79,320/- (ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF DDBS OF NIRMA LTD.) 2.2 GROUNDS NO.2 & 3 ARE INTERCONNECTED AS REPRODUC ED BELOW: 2. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE AP PELLANT'S CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING THE ACTION OF ID. ASSESSING OFFICER IN CONSIDERING THE LONG TERM CAPITAL GAIN OF RS.8,79,320/- ON SALE OF 40 DEEP DI SCOUNT BONDS OF NIRMA LIMITED AS SHORT TERM CAPITAL GAIN. 3. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANT'S CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 9 THE ACTION OF ID. ASSESSING OFFICER IN NOT ALLOWING CLAIM OF DEDUCTION U/S.54EC OF THE ACT ON LONG TERM CAPITAL GAIN REFER RED TO IN GROUND NO. 2 ABOVE. 2.2.1 THE BRIEF FACTS OF THE CASE ARE THAT IT IS NO TED BY THE A.O. IN PARA 4 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS SHOWN LO NG TERM CAPITAL GAIN (LTCG) OF RS.8,79,320/- IN RESPECT OF PURCHASE AND SALE OF DEEP DISCOUNT BONDS (DDBS) OF NIRMA LTD. HE HAS ALSO NOTED THAT T HE PURCHASE COST OF THE SAME HAVE BEEN SHOWN AT RS.40 LACS AND SALE CON SIDERATION HAS BEEN DECLARED AT RS.48,79,320/-. HE HAS FURTHER NOTED TH AT THESE DDBS WERE ALLOTTED TO THE ASSESSEE ON 28.07.2000 AND THE ALLO TMENT LETTER WAS ISSUED TO THE ASSESSEE DATED 23.09.2000. HE HAS FURTHER NO TED THAT THE DEBENTURE CERTIFICATE HAS BEEN ISSUED TO THE ASSESSEE DATED 0 5.10.2001. THEREAFTER, IT IS NOTED THAT DDBS OF SERIES A OF NIRMA INDUSTRI ES LTD. WERE LISTED IN NATIONAL STOCK EXCHANGE (NSE) ON 20.09.2001 AND WAS MADE AVAILABLE FOR DEMATERIALIZATION AS ON 19.09.2001. THEREAFTER, HE HAS NOTED THAT THESE DDBS OF NIRMA LTD WERE SOLD BY THE ASSESSEE ON18.03 .2002. THE ASSESSEE HAS CLAIMED IT AS LONG TERM CAPITAL ASSET BY COUNTING THE HOLDING PERIOD STARTING FORM THE DATE OF ALLOTMENT I.E. 28. 07.2000 BUT THE A.O. WAS OF THE VIEW THAT THESE ARE SHORT TERM CAPITAL ASSET S ON THE BASIS OF COUNTING OF HOLDING PERIOD FROM THE DATE OF LISTING OF THE S AME IN NSE I.E. 20.09.2001. ON THE BASIS OF THIS, THE A.O. HELD THA T THIS CAPITAL GAIN OF RS.8,79,320/- IS ASSESSABLE AS SHORT TERM CAPITAL G AIN AND HE TAXED THE SAME ACCORDINGLY. MOREOVER, THE A.O. DISALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 54EC OF THE INCOME TAX A CT, 1961 ALSO FOR THE SAME REASON THAT SUCH DEDUCTION IS ALLOWABLE AGAINS T LTCG ONLY AND NOT AGAINST STCG. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) BUT WITHOUT SUCCESS AND NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 2.2.2 IT WAS SUBMITTED BY THE LD. A.R. BEFORE US TH AT IN THE CASE OF SHRI KARSANBHAI P PATEL (HUF) FOR THE SAME ASSESSMENT YE AR I.E. ASSESSMENT YEAR 2002-03, THIS ISSUE WAS DECIDED IN FAVOUR OF T HE ASSESSEE IN I.T.A.NO. 1042/A/2006 DATED 09.10.2009. HE SUBMITTED THAT THI S DECISION IS AVAILABLE ON PAGES 62-87 OF THE PAPER BOOK AND THE RELEVANT P ARA IS PARA 26 OF THIS TRIBUNAL DECISION ON PAGE 85 OF THE PAPER BOOK. LD. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 2.2.3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISION CITED BY LD. A.R. FROM THE FACTS NOTED BY THE TRIBUNAL IN THAT CASE, WE FIND THAT THE DISPUTE BEFORE THE TRIB UNAL WAS REGARDING THE SAME DDBS OF NIRMA LTD. FOR WHICH LETTER OF ALLOTME NT WAS ISSUED BY NIRMA ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 10 LTD. ON 23.09.2000 AND DEBENTURE CERTIFICATE WAS IS SUED ON 05.10.2001 AND THE SAME WAS LISTED IN NSE ONLY ON 20.09.2001. HENCE, THE FACTS IN THE PRESENT CASE ARE IDENTICAL. THIS ISSUE WAS DECI DED BY THE TRIBUNAL AS PER PARA 26 OF THE TRIBUNAL DECISION AND FOR THE SA KE OF READY REFERENCE, THE SAME IS REPRODUCED BELOW: FOR THE AFORESAID REASONS, WE ARE OF THE VIEW THAT THE ASSESSEE IS RIGHT IN CLAIMING THAT THE CAPITAL GAINS ARISING ON THE SALE OF THE DEEP DISCOUNT BONDS SHOULD BE ASSESSED AS LONG TERM CAPI TAL GAINS ON THE FOOTING THAT HE HELD THEM FOR A PERIOD OF MORE THAN 12 MONTHS STARTING FORM 23.09.2000 BEFORE THEY WERE SOLD ON 2 .03.2002. CONSEQUENTLY, WE ALSO HOLD THAT THE ASSESSEE IS ENT ITLED TO THE EXEMPTION U/S 54EC AS CLAIMED. THUS BOTH GROUNDS NO S. 2 AND 3 ARE ALLOWED. 2.2.4 FROM THE ABOVE PARA OF THE TRIBUNAL ORDER, WE FIND THAT IT WAS HELD BY THE TRIBUNAL THAT THE HOLDING PERIOD HAS TO BE COUN TED FORM THE DATE OF ALLOTMENT TILL THE DATE OF SALE AND IF THE SAME IS MORE THAN 12 MONTHS THEN, IT HAS TO BE ACCEPTED THAT IT IS A LTCG AND THE ASS ESSEE IS ENTITLED TO DEDUCTION U/S 54EC ALSO. HENCE, IN THE PRESENT CASE ALSO, BY RESPECTFULLY FOLLOWING THE TRIBUNAL DECISION, WE DECIDE BOTH THE SE ISSUES IN FAVOUR OF THE ASSESSEE AND IT IS HELD THAT SINCE PERIOD OF HO LDING WAS MORE THAN 12 MONTHS FROM THE DATE OF ALLOTMENT I.E. 23.09.2000 T ILL THE DATE OF SALE I.E. 18.03.2002, THE RESULTING GAIN HAS TO BE ASSESSED A S LTCG AND THE ASSESSEE SHOULD BE HELD AS ELIGIBLE FOR DEDUCTION U /S 54EC ALSO BECAUSE THERE IS NO OTHER OBJECTION OF THE REVENUE REGARDIN G ALLOWABILITY OF DEDUCTION U/S 54EC EXCEPT THAT THE INCOME IN QUESTI ON IS NOT A LTCG. BOTH THESE GROUNDS NO.2 & 3 ARE ALLOWED. ADDITION OF RS.53,49,000/- (ACCOUNT OF SHORT TERM CAPITAL GAIN ON THE TRANSACTION OF STRIPS OF TATA FINANCE LTD. 2.3 GROUNDS NO.4 & 5 ARE INTERCONNECTED WHICH READ AS UNDER: 4. IN JAW AND IN FACTS AND CIRCUMSTANCES OF THE AP PELLANT'S CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN UPHOLDING THE ACTION OF ID. ASSESSING OFFICER IN CO NSIDERING THE LONG TERM CAPITAL GAIN OF RS.53,49,000/- ARISING ON SALE OF PRINCIPAL STRIP PART A OF TATA FINANCE LTD. NCDS AS SHORT TERM CAPI TAL GAIN. ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 11 5. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANT'S CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING THE ACTION OF ID. ASSESSING OFFICER IN NOT ALLOWING CLAIM OF DEDUCTION U/S.54EC OF THE ACT ON LONG TERM CAPITAL GAIN REFER RED TO IN GROUND NO. 4 ABOVE. 2.3.1 THE BRIEF FACTS REGARDING THESE ISSUES ARE TH AT IT IS NOTED BY THE A.O. IN THE SAME PARA 4 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS SHOWN LTCG OF RS.53.49 LACS FROM THE TRANSACTION OF NCD P RINCIPLE STRIP, PART A SERIES I OF TATA FINANCE LTD. HAVING PURCHASE COST OF RS.495.51 LACS AND SALE CONSIDERATION BEING RS.549 LACS. IN RESPECT OF THIS CAPITAL GAIN ALSO, THE ASSESSEE CLAIMED DEDUCTION U/S 54EC OF THE INCO ME TAX ACT, 1961 BECAUSE THE ASSESSEE HAD MADE INVESTMENT IN THE BON DS OF RURAL ELECTRICITY CORPORATION (REC) OF RS.62.20 LACS AND THE LTCG OF ONLY RS.8320 HAD BEEN OFFERED BY THE ASSESSEE. THE A.O. HAS FURTHER NOTED THAT THE ASSESSEE HAS PURCHASED 9 PRINCIPLE STRIPS OF PART A SERIES I OF TATA FINANCE LTD. OF RS.1 CRORES (FACE VALUE) FOR A CONSIDERATION OF RS.495.41 LACS ON 23.10.2000 FROM NIRMA INDUSTRIES LTD., WHICH IS A GROUP CONCERN OF NIRMA GROUP AND THE SAME WAS SOLD BY THE ASSESSEE ON 20.03.2002 AT RS.549 LACS TO NIRMA INDUSTRIES LTD. I.E. THE SAME CONCERN FROM WHICH THE ASSESSEE PURCHASED THESE STRIPS. THE A.O. ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY THE BOARDS CIRCULAR NO.2 OF 2002 DATED 15.02.2002 IS NOT APPLICABLE AND WHY THIS CAP ITAL GAIN SHOULD NOT BE CONSIDERED AS STCG IN THE LIGHT OF THIS BOARDS CIR CULAR. IN REPLY, IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE A.O. THAT THE LETTER OF BOARD DATED 12.03.1996 WAS APPLICABLE IN THE PRESENT CASE AND T HEREFORE, THE GAIN IS LTCG. IT WAS FURTHER SUBMITTED BY THE ASSESSEE BEFO RE THE A.O. THAT AS PER THE PRESS RELEASE OF THE BOARD DATED 20.03.2002, TH E APPLICABILITY OF THE CIRCULAR IS PROSPECTIVE AND NOT RETROSPECTIVE AND F OR THIS REASON ALSO, THE GAIN IN QUESTION IS LTCG AND THE SAME CANNOT BE CON SIDERED TO BE STCG. THE A.O. WAS NOT SATISFIED AND HE HELD THAT THIS GA IN OF RS.53.49 LACS IS STSCG AND THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTIO N U/S 54EC ALSO. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) BUT WITHOUT SUCCESS AND NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 2.3.2 IT WAS SUBMITTED BY THE LD. A.R. THAT THIS IS SUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL DECISION REN DERED IN THE CASE OF ITO VS KULGAM HOLDINGS PVT. LTD. IN I.T.A.NO. 3785 AND 2574/AHD/2004 DATED 25.04.2007, COPY OF WHICH IS AVAILABLE ON PAGE 136- 140 OF THE PAPER BOOK II. HE FURTHER SUBMITTED THAT ON THE SAME ISSUE, AN OTHER TRIBUNAL DECISION RENDERED IN THE CASE OF NAVIN ASSOCIATES VS ACIT AN D OTHERS IN I.T.A.NO. 1248, 1256 & 1266/AHD/2006 IS ALSO IN FAVOUR OF THE ASSESSEE AND A COPY ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 12 OF THIS TRIBUNAL DECISION IS AVAILABLE ON PAGES 196 - 199 OF THE PAPER BOOK II. LD. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BE LOW. 2.3.3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISIONS CITED BY LD. A.R. WE FIND THAT I N THE CASE OF NAVIN ASSOCIATES (SUPRA), THE ISSUE INVOLVED WAS, WHETHER THE BOARDS CIRCULAR NO.2 OF 2002 DATED 15.02.2002 CAN BE APPLIED IGNORI NG THE PRESS NOTE DATED 20.03.2002 ISSUED IN THIS REGARD BY CBDT. THE TRIBUNAL IN THAT CASE HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE TRIBUNAL DECISION RENDERED BY THE MUMBAI BENCH OF THE TRIBUN AL RENDERED IN THE CASE OF ITO VS KULGAM HOLDINGS PVT. LTD. (SUPRA). T HE TRIBUNAL HAS ALSO FOLLOWED SMC BENCH DECISION OF AHMEDABAD BENCH OF T HE TRIBUNAL RENDERED IN THE CASE OF NAVIN ASSOCIATES IN I.T.A.N O. 1621/AHD/2007 DATED 04.04.2008. WE FIND THAT IN THE CASE OF ITO V S KULGAM ASSOCIATES (SUPRA), IT WAS HELD BY LD. CIT(A) THAT SINCE THE B ONDS WERE ACQUIRED BY THE ASSESSEE PRIOR TO THE DATE OF BOARDS CIRCULAR NO.2 DATED 15.02.2002, SUCH BOARDS CIRCULAR CANNOT BE MADE APPLICABLE BEC AUSE THE BONDS IN QUESTION WERE ACQUIRED PRIOR TO THIS DATE AND AS PE R SUBSEQUENT PRESS RELEASE DATED 20.03.2002, IT WAS MADE CLEAR THAT TH IS BOARDS CIRCULAR NO.2 WILL BE APPLICABLE ONLY FOR BONDS WHICH ARE ACQUIRE D AFTER THIS DATE. THIS DECISION OF LD. CIT(A) WAS APPROVED BY THE TRIBUNAL IN THAT CASE. SIMILARLY IN THE CASE OF NAVIN ASSOCIATES (SUPRA), SIMILAR IS SUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND WHILE DECIDI NG THIS ISSUE IN THAT CASE, THE TRIBUNAL HAS FOLLOWED A DECISION OF SMC B ENCH OF AHMEDABAD BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF NAVIN ASSOCIATES (SUPRA). THIS SMC BENCH DECISION OF THE TRIBUNAL HAS FOLLOWE D A DIVISION BENCH DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL RENDERE D IN THE CASE OF KISAN DISCRETION FAMILY TRUST IN I.T.A.NO. 1850/AHD/2007 DATED 02.11.2007. THIS TRIBUNAL DECISION IS ALSO AVAILABLE IN THE PAPER BO OK-II ON PAGES 141-195. IN PARA 57 OF THIS TRIBUNAL DECISION ON PAGE 194 (B ACKSIDE), IT WAS HELD BY THE ACCOUNTANT MEMBER IN THAT CASE THAT THIS BOARD S CIRCULAR DATED 15.02.2002 IS APPLICABLE ONLY TO DDBS ACQUIRED ON O R AFTER 15.05.2002 AND SINCE JUDICIAL MEMBER IN THAT CASE WAS ALSO HAVING THE SAME VIEW, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE WITHOU T REFERRING THE SAME TO THE THIRD MEMBER ALTHOUGH THE ACCOUNTANT MEMBER WAS HAVING SOME RESERVATIONS ABOUT THE VIEW OF THE JUDICIAL MEMBER ON SOME OTHER ASPECTS. BE THAT AS IT MAY BUT THIS IS ADMITTED POSITION THA T ON THIS ASPECT, I.E. BOARDS CIRCULAR NO.2 DATED 15.02.2002 IS APPLICABL E ONLY ON THOSE BONDS WHICH WERE ACQUIRED ON OR AFTER 15.02.2002, THERE A RE SEVERAL TRIBUNAL DECISIONS IN FAVOUR OF THE ASSESSEE AND NO CONTRARY DECISION WAS BROUGHT TO OUR NOTICE BY THE LD. D.R. AND SINCE IN THE PRES ENT CASE, THE STRIP OF TATA FINANCE LTD. WERE ACQUIRED BY THE ASSESSEE ON 23.03.2000 I.E. ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 13 MUCH PRIOR TO 15.02.2002, IT HAS TO BE ACCEPTED THA T IN THE FACTS OF THE PRESENT CASE, THIS BOARDS CIRCULAR NO.2 DATED 15.0 2.2002 IS NOT APPLICABLE AND THEREFORE, THE GAIN IN QUESTION HAS TO BE ASSES SED AS LTCG AND THE ASSESSEE HAS TO BE ALLOWED DEDUCTION U/S 54EC ALSO. WE HOLD ACCORDINGLY. GROUNDS NO.4 & 5 OF THE ASSESSEE ARE A LSO ALLOWED. 11. WE ARE OF THE CONSIDERED VIEW THAT THERE ARE SE RIES OF DECISIONS OF THE TRIBUNAL WHEREIN IT HAS BEEN HELD THAT IF TH E QUANTUM ADDITION IS DELETED BY THE TRIBUNAL THEN IN SUCH CASES ASSESSEE SHOULD NOT BE VISITED WITH PENALTY U/S 271(1)(C) OF THE ACT FOR C ONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 12. IN APPEAL BEFORE US, WE OBSERVE THAT OUT OF TOT AL ADDITION OF RS.62,78,505/-, PENALTY ON THE ADDITION OF RS.50,18 5/- HAS ALREADY BEEN DELETED BY US AND FOR THE REMAINING AMOUNT OF ADDITION I.E. RS.62,28,320/- (RS. 8,79,320/- + RS.53,49,000/-) AS THE QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL IN ITA N O. 1255/AHD/2006 FOR ASST. YEAR 2002-03 VIDE ORDER DATED 21.06.2013, AND SO NO PENALTY IS TO BE SUSTAINED U/S 271(1)(C) OF THE ACT . ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A), WE UPHOLD THE SAME. THIS GROUND RAISED BY THE REVENUE IS DISM ISSED. 7. AS THE ISSUE BEFORE US IN THIS APPEAL IS SIMILAR TO THE ISSUE DEALT BY US IN OTHER APPEAL OF GROUP CASE OF ASSESSEE, WE ARE OF THE VIEW THAT LD. ASSESSING OFFICER WAS NOT JUSTIFIED IN IMP OSING THE PENALTY U/S 271(1)(C) OF THE ACT AND WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A). WE UPHOLD THE SAME. ACCORD INGLY GROUND NO.1 IS DISMISSED. 8. OTHER GROUNDS ARE GENERAL IN NATURE, WHICH NEED NO ADJUDICATION. ITA NO. 1137/AHD/2008 ASST. YEAR 2002-03 14 9. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2016 SD/- SD/- (R.P. TOLANI) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 8/6/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 7/06/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 7/06/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 8.6.16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: