The DCIT, Central Circle-1(1), Ahmedabad V. Shri Hasmukh N. Vora,HUF, Ahmedabad

ITA 1413/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1374 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-06-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 27-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD .., , !' BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T.A. NO.1413/AHD/2012 ( / ASSESSMENT YEAR : 2006-07) THE ACIT CENTRAL CIRCLE-1(1) AHMEDABAD / VS. SHRI HASMUKH N.VORA-HUF 304, ANAND CHAMBERS NR.OLD HIGH COURT RLY CROSSING AHMEDABAD $ ./ ./ PAN/GIR NO. : AAAHV 9375 F ( $' / APPELLANT ) .. ( ()$' / RESPONDENT ) $'* / APPELLANT BY : SHRI K. MADHUSUDAN, SR.DR ()$'+* / RESPONDENT BY : SHRI P. M. MEHTA WITH SHRI G.M.THAKOR, ARS ,+ / DATE OF HEARING 08/06/2016 -./+ / DATE OF PRONOUNCEMENT 13/06/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-I, AHMEDABAD D ATED 24/04/2012 FOR THE ASSESSMENT YEAR 2006-07. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- ITA NO.1413/AHD /2012 ACIT VS. SHRI HASMUKH N. VORA-HUF ASST.YEAR 2006-07 - 2 - 2.1. ASSESSEE IS AN HUF HAVING INCOME FROM CAPITAL GAINS AND INCOME FROM OTHER SOURCES. ASSESSEE FILED ITS RETURN OF I NCOME FOR AY 2006-07 ON 31/07/2006 DECLARING TOTAL INCOME OF RS.2,54,84, 365/- INTER ALIA BY CLAIMING THE PROFITS EARNED FROM SALE OF SHARES AS SHORT TERM CAPITAL GAINS (STCG). THE CASE WAS SELECTED FOR SCRUTINY A ND THEREAFTER ASSESSMENT WAS FRAMED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') VIDE ORDER D ATED 31/12/2008 AND THE TOTAL INCOME WAS DETERMINED AT THE SAME FIGURE AS P ER THE RETURN OF INCOME FILED BY THE ASSESSEE, BUT HOWEVER THE PROF IT FROM SALE OF SHARES WAS HELD TO BE PROFIT AND GAINS FROM BUSINESS INSTE AD OF CAPITAL GAIN AS SHOWN BY THE ASSESSEE. 3. ON THE AFORESAID CHANGE OF HEAD OF INCOME MADE B Y THE AO, AO VIDE ORDER DATED 30/03/2011 HELD THAT ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME AND HAD THEREFORE CONCEALED P ARTICULARS OF INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME IN R ESPECT OF STCGS. HE THEREFORE LEVIED PENALTY OF RS.44,15,368/- U/S.271( 1)(C) OF THE ACT. AGGRIEVED BY THE PENALTY ORDER LEVIED BY THE AO, AS SESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO VIDE ORDER DATED 2 4/4/2012 (IN APPEAL NO.CIT(A)-I/CC.1(1)/9/2011-12) DIRECTED THE AO TO D ELETE THE PENALTY AND THUS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSE E. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUND:- ITA NO.1413/AHD /2012 ACIT VS. SHRI HASMUKH N. VORA-HUF ASST.YEAR 2006-07 - 3 - 1) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.44,15,368/- IMPOSED UNDER SECTION 271 (1)(C) OF THE I.T.ACT, 1961. 3.1. BEFORE US, AT THE OUTSET, LD.AR SUBMITTED THAT IN THE PRESENT CASE PENALTY U/S.271(1) WAS LEVIED BY THE AO ON THE CH ANGE OF HEAD UNDER WHICH THE INCOME WAS TAXED NAMELY, FROM STCG AS OF FERED BY ASSESSEE TO BUSINESS INCOME AS CONSIDERED BY AO. LD.AR SUBM ITTED THAT AGAINST THE QUANTUM ORDER, ASSESSEE AND REVENUE HAD CARRIED THE MATTER BEFORE THE TRIBUNAL. TRIBUNAL (ITAT B BENCH AHMEDABAD) VIDE ORDER DATED 07/08/2015 IN ITA NO.1390/AHD/2010 FOR AY 2006-07 ( REVENUES APPEAL) AND ITA NO.1590/AHD/2010 FOR AY 2006-07 (AS SESSEES APPEAL) HAD DECIDED THE ISSUE IN FAVOUR OF ASSESSEE AND IN SUCH A SITUATION, THERE WAS NO CASE OF LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. HE ALSO PLACED ON RECORD THE COPY OF THE SAID ORDER OF TRIBUNAL. LD.SR.DR DID NOT CONTROVERT THE SUBMISSIONS MADE BY THE LD.AR, BUT H OWEVER SUPPORTED THE ORDER OF AO. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LE VY OF PENALTY OF RS.44,15,368/- U/S.271(1)(C) OF THE ACT ON ACCOUNT OF ASSESSMENT OF STCGS OF RS.2,20,76,842/- AS BUSINESS INCOME IN THE HANDS OF ASSESSEE WE FIND THAT THE AFORESAID ISSUE HAS BEEN DECIDED I N FAVOUR OF ASSESSEE BY ITA NO.1413/AHD /2012 ACIT VS. SHRI HASMUKH N. VORA-HUF ASST.YEAR 2006-07 - 4 - THE COORDINATE BENCH OF TRIBUNAL. IN SUCH A SITUAT ION, WE ARE OF THE VIEW THAT SINCE THE ISSUE ITSELF HAS BEEN DECIDED IN FA VOUR OF ASSESSEE, PENALTY U/S.271(1)(C) OF THE ACT DOES NOT SURVIVE FOR THE R EASON THAT THE VERY BASIS ON WHICH PENALTY PROCEEDINGS HAS BEEN INITIATED ITS ELF HAS NOT REMAINED. IN SUCH A SITUATION, WE FIND NO INFIRMITY IN THE OR DER OF THE LD.CIT(A) THUS, THIS GROUND OF REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/06/2016 SD/- SD/- .. () () ( R.P. TOLANI) ( ANIL CHATURVEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/ 06 /2016 3..,.../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ()$' / THE RESPONDENT. 3. 456 7 / CONCERNED CIT 4. 7 ( ) / THE CIT(A)-I, AHMEDABAD 5. 89:(56 , 56/ , 4 / DR, ITAT, AHMEDABAD 6. :<=, / GUARD FILE. / BY ORDER, )8( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD