Appeal details
Counselvise Citation
[2018] 126 COUNSELVISE.COM (IT) 2845 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 3 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
07-03-2018
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
E
Assessment Year
2006-2007
Appeal Filed On
04-03-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES E : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA.NO.1273/DEL./2015 ASSESSMENT YEAR 2006-2007 THE ACIT, CIRCLE - 31(1), ROOM NO.1302, 13 TH FLOOR, E-2, PRATYKSHYA KAR BHAWAN, SHAYAMA PRASAD MUKHERJEE CIVIC CENTRE, JAWAHARLAL NEHRU MARG, MINTO ROAD, NEW DELHI-002. VS SHRI NARENDRA GEHLAUT, 296, FOREST LANE, NEB SARAI, SAINIK FARMS, NEW DELHI 110 068. PAN AAZPG9630K (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI S. R. SENAPATI, SR. D.R. FOR ASSESSEE : SHRI MANOJ SINGHAL, ADVOCATE. DATE OF HEARING : 05.03.2018 DATE OF PRONOUNCEMENT : 07 . 03.2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-11, NEW DELHI, DATED 29 TH DECEMBER, 2014, FOR THE A.Y. 2006-2007, CHALLENGING THE DELETION OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE A.O . PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE I.T. A CT, 1961 FOR THE 2 ITA.NO.1273/DEL./2015 SHRI NARENDRA GEHLAUT, NEW DELHI. ASSESSMENT YEAR UNDER APPEAL ON 30 TH DECEMBER, 2008 AT AN INCOME OF RS.9.11 CRORE AS AGAINST THE RETURNED INCOME OF RS.4.43 CRORE. THE ASSESSEE HAD CLAIMED TO BE ENGAGED IN THE BUSINESS OF HIRING OF EARTH MOVING EQUIPMENTS. BESIDES THIS BUSINESS ACTIVITY, ASSESSEE WAS ALSO ENGAGED IN SHARE TRADING ACTIVITY AND TRADING IN COMMODITY FUTURES. HOWEVER, WHILE PASSING THE ASSESSMENT ORDE R, IT WAS HELD BY THE A.O. THAT ASSESSEES DOMINANT/MAIN BUSINESS PERTAINS TO STOCK/COMMODITIES MARKET AND NOT THAT OF HIRING OF MINING MACHINERY AND EQUIPMENTS. THE A.O. RELIED UPON SEVE RAL FACTS AND OBSERVED THAT THE SHARE TRANSACTIONS ENTERED INTO B Y THE ASSESSEE WERE IN THE NATURE OF BUSINESS ENTERPRISE AND NOT I N THE NATURE OF CAPITAL INVESTMENTS AS CLAIMED BY THE ASSESSEE. THE REFORE, THE INCOME OF THE ASSESSEE WAS ASSESSED AS PROFIT AND G AINS DERIVED FROM SHARE TRADING AS BUSINESS INCOME AS AGAINST CAPI TAL GAINS CLAIMED BY THE ASSESSEE. THE A.O. ON THE SAME LEVIED THE PE NALTY. 3. THE ASSESSEE CONTENDED BEFORE LD. CIT(A) THAT A SSESSEE PREFERRED APPEAL BEFORE ITAT AGAINST THE ORDERS OF THE AUTHORITIES BELOW WHICH HAVE BEEN DECIDED IN FAVOUR OF THE ASSE SSEE VIDE ORDER DATED 16 TH DECEMBER, 2016 IN ITA.NO.1648/DEL./2010. THE LD. CIT(A) REPRODUCED THE FINAL FINDINGS OF THE ORDER O F THE TRIBUNAL IN 3 ITA.NO.1273/DEL./2015 SHRI NARENDRA GEHLAUT, NEW DELHI. THE IMPUGNED ORDER AND HELD THAT SINCE ITAT HAS DEC IDED THE ISSUE IN FAVOUR OF THE ASSESSEE, THEREFORE, PENALTY IS NO T LEVIABLE. 4. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE ASSESSEE HAS FILED COPY OF THE ORDER OF THE TRIBUNAL WHEREBY THE QUANTUM ADDITION HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THEREFORE, NO PE NALTY IS LEVIABLE. NO INFIRMITY HAVE BEEN POINTED-OUT IN THE ORDER OF THE LD. CIT(A) IN CANCELLING THE PENALTY. 5. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (WASEEM AHMED) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 07 TH MARCH, 2018 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT E BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.
