ITO 4(2)(3), MUMBAI V. SUBHKAM STOCK & SHARES LTD, MUMBAI

ITA 1478/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9233 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: R C JAIN
• Keywords: Speculation loss
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E: MUMBAI BEFORE SHRI J. SUDHAKAR REDDY (AM) AND SHRI R.S. PADVEKAR (JM) ITA NO. 1478/MUM/2009 (ASSTT. YEAR : 2003-04 ) THE ITO-4(2)(3), MUMBAI APPELLANT ROOM NO.647, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 V/S. M/S SUBHKAM STOCK & SHARES LTD RESPONDENT 15, ONLOOKER BUILDING SIR P.M. ROAD, FORT MUMBAI-23 PAN : AAACM7389K APPELLANT BY :MR. NAVEEN GUPTA RESPONDENT BY :MR. R.C. JAIN : O R D E R : PER R.S. PADVEKAR, J.M THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE IMPUGNED ORDER OF THE LD CIT(A)- IV, MUMBAI DATED 11.9.2006 FOR TH E A.Y. 2003-04. 2. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GR OUND : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE PENALTY OF RS. 19,8 4,640/- LEVIED U/S. 271(1)(C ) OF THE I.T. ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD FILED INACCURATE PARTICULARS AND CLAIMED SET OF F OF SPECULATION LOSS AGAINST THE DIVIDEND INCOME ASSESSABLE UNDER THE HE AD INCOME FROM OTHER SOURCES. 3. WE HAVE HEARD THE PARTIES. THE A.O HAS LEVIED T HE PENALTY U/S. 271(1)(C) ON THE ISSUE OF NON-SETTING OF DIVIDEND I NCOME AGAINST THE DEEMED ITA NO. 1478/MUM/2009 2 SPECULATION LOSS AS PER THE EXPLANATION U/S. 73 OF THE I.T. ACT. THE ASSESSEE HAS CHALLENGED BY WAY OF APPEAL BEFORE ITAT, MUMBA I AND ITAT VIDE ORDER DT. 7.11.2008 IN ITA NO. 7068/MUM/2006 HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE. THE A.O. LEVIED THE PENALTY U/S. 271(1)( C ) ON THE REASON THAT THE ASSESSEE HAS FURNISHED THE INACCURATE PARTICULARS O F INCOME IN RESPECT OF THE DIVIDEND CLAIMING THE SAME AS INCOME FROM THE BUSIN ESS AS AGAINST THE INCOME FROM OTHER SOURCES. AS THE TRIBUNAL HAS DE CIDED THE ISSUE IN QUANTUM APPEAL IN FAVOUR OF THE ASSESSEE WHICH WAS THE BASI S FOR THE LEVY OF PENALTY, HENCE, THE PRESENT PENALTY LEVIED BY THE A.O U/S. 2 71(1)(C ) DOES NOT SURVIVE AS RIGHTLY HELD BY THE LD CIT(A). WE FIND NO REASO N TO INTERFERE WITH THE ORDER OF THE LD CIT(A). ACCORDINGLY, THE SAME IS CONFIRM ED. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH DAY OF JANUARY , 2010. SD/- SD/- (J. SUDHAKAR REDDY) (R.S. PADVEKAR) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, ON THIS 28TH DAY OF JANUARY , 2010. :US COPY TO: 1. APPELLANT 2. RESPONDENT , 3.THE CIT(A)- IV, MUMBAI 4.THE CIT -4, MUMBAI 5.THE DR, E BENCH, MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR, ITAT, MUMBAI. ITA NO. 1478/MUM/2009 3 US DATE INITIALS 1. DRAFT DICTATED ON 25/1/10 --------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHORITY27/1/10 --------- ----- SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----