M/s. Sports Club of Gujarat Ltd., Ahmedabad V. The DCIT, Circle - 4(1)(2), Ahmedabad

ITA 1852/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7891 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-12-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 09-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL R SHAH; KINJAL R SHAH
• Keywords: Tax effect
• Section: 271(1)(c); 143(3); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SPORTS CLUB OF GUJARAT LTD. SARDAR PATEL STADIUM, NAVRANGPURA, AHMEDABAD PAN: AAACT7280N (APPELLANT) VS THE DY. CIT , CIRCLE - 4( 1 )(2 ) , AHMEDABAD (RESPONDENT) REVENUE BY : S H RI VINOD TANWANI , SR. D . R. ASSESSEE BY: SHRI ANIL R. SHAH AND KINJAL R. SHAH , A.R S . DATE OF HEARING : 05 - 12 - 2 019 DATE OF PRONOUNCEMENT : 21 - 01 - 2 020 / OR DER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2010 - 11 , ARI SES FROM ORDER OF THE CIT(A) - 8, AHMEDABAD DATED 04 - 07 - 2 017 , IN PROCEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE SOLITA RY GROUND OF APPEAL OF THE ASSESSEE IS AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING PENALTY OF R S. 2 , 52 , 728/ - LEVIED U/S. 271(1)(C) OF THE ACT. I T A NO . 1852 / A HD/20 17 A SS ESSMENT YEAR 2010 - 11 I.T.A NO. 1852 /AHD/20 17 A.Y. 2010 - 11 PAGE NO SPORTS CLUB OF GUJARAT LTD. VS. DY. CIT 2 3. THE FACT IN BRIEF IS THAT ASSESSEE HAS FI L E D RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 5 6 , 70 , 260/ - . THE ASSESSMENT U/S. 143(3) WAS MADE ON 3 RD DECEMBER, 2012. REGARDING ISSUE CONTESTED IN THE APPEAL DURING THE COURSE OF ASSES SMENT, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAD CARRIED FORWARD THE LONG TERM CAPITAL LOSS OF RS. 13 , 90 , 766/ - ALTHOUGH AL LOWABLE LONG TERM LOSS TO BE CARRIED FORWARD WAS ONLY RS. 6 , 37 , 568/ - AND FURTHER THE SHORT TERM CAPITAL GAIN WAS OF R S. 1 , 40 , 812/ - INSTEAD OF RS. 51 , 585/ - WHICH WAS ADJUSTED AGAINST THE BROUGHT FORWARD SHORT TERM CAPITAL LOSS O F R S. 3 , 65 , 560/ - AND THE REMA INING LOSS WAS CARRIED FORWARD TO NEXT YEAR. THE ASSESSING OFFICER HA S STATED THAT ASSESSEE REVISED ITS COMPUTATION AND SUBMITTED VIDE DATED 16 TH OCTOBER, 2012 AND AFTER INCORPORATING THE SAID FACT OF SHORT TERM/LONG TERM PROFIT IN THE STATEMENT OF INCOME THE SHORT TERM CAPITAL ACCUMULATED STANDS AT R S. 1 , 40 , 812/ - INSTEAD RS,. 51 , 585/ - AND LONG TERM CAPITAL LOSS STANDS AT RS. 6 , 37 , 568/ - INSTEAD RS. 13 , 90 , 766/ - . THE ASSESSEE HAS ALSO ISSUED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT F OR FURNISHING INACC URATE PARTICU L AR S OF INCOME. 4. DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSEE HAS CONTENDED THAT ALL THE DETAILS AND PARTICULARS WERE FILED BY T H E ASSESSEE SUO MOTO IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THERE WAS NO CONCEALMENT OF INCOME BY THE ASSESSEE. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE SUBMISSION OF THE ASSESSEE AND STATED THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME AND IMPOSED PENALTY OF R S. 2 , 52 , 728/ - U/S. 271(1)(C) OF THE ACT. I.T.A NO. 1852 /AHD/20 17 A.Y. 2010 - 11 PAGE NO SPORTS CLUB OF GUJARAT LTD. VS. DY. CIT 3 5. THE ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL HOLDING THAT ASSESSEE HAS FAILED TO COMPUTE THE INCOME CORRECTLY AND THEREBY AVOIDED NOTIONAL INCOME FOR WHICH THE ASSESSING OFFICER HAS LEVIED PENALTY U/S. 271(1)(C) . 6. WE HA VE HARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. DURING THE COURSE OF ASSES SMENT, THE ASSESSING OFFICER STATED THAT ASSESSEE HAS TAKEN INTO ACCOUNT THE EFFECT OF SHORT TERM /LONG TERM PROFIT AS PER BOOKS IN THE STATEMENT OF INCOME AND AFTER INC ORPORATING THE SAID EFFECT OF SHORT TERM/LONG TERM PROFIT IN THE STATEMENT OF INCOME SHORT TERM CAPITAL GAIN STAND S AT RS. 1 , 40 ,812/ - INSTEAD OF R S.51 , 585/ - AND LONG TERM CAPITAL LOSS STANDS AT R S. 6 , 37 , 568/ - INSTEAD OF RS. 13 , 90 , 766/ - HOWEVER THER E WAS NO EFFECT ON TOTAL INCOME . T HERE WAS NET LONG TERM CAPITAL LOSS OF R S. 6 , 37 , 568/ - AFTER ADJUSTING OF SHORT TERM CAPITAL GAIN OF R S. 1 , 40 , 812/ - WHICH WAS TO BE CARRIED FORWARD. THE LD. CIT(A) HAS SUSTAINED THE PENA L TY STATING THAT LONG TERM CAPITAL LOSS HA VING NOTIONAL TAX EFFECT. THE LD. CIT(A) HAS SUSTAINED PENA L TY STATING THAT R EVISED COMPUTATION WAS FILED BY T H E ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AFTER SAME WAS POINTED OUT BY THE ASSESSING OFFICER. ON THE OTHER SIDE, THE ASSESSEE HA S CLAIMED THAT ASSES SING OFFICER WAS HIMSELF OF THE OPINION THAT ASSESSEE HAS FURNISHED REVISED WORKING SUO MOTO AND THERE WAS ONLY A NOTIONAL TAX EFFECT OF SUCH TRANSACTION. THERE WAS NO CONCEALMENT OF INCOME FOR FILING INACCURATE PARTICULARS OF INCOME. IN THIS REGARD, WE HAVE PERUSED THE ASSESSMENT ORDER AND NOTICED THAT ASSESSING OFFICER HAS DISCUSSED THE ISSUE SHORT TERM/ LONG TERM GAIN AND LOSS AT PARA 5 OF THE ASSESSMENT ORDER AND NOWHERE IN THE ASSESSMENT ORDER , ASSESSING OFFICER HAS STATED THAT THE IMPUGNED DISCREPANCY I.T.A NO. 1852 /AHD/20 17 A.Y. 2010 - 11 PAGE NO SPORTS CLUB OF GUJARAT LTD. VS. DY. CIT 4 IN REPORTING OF TRANSACTION W AS POINTED OUT TO THE ASSESSEE. THE ASSESSING OFFICER HAS ONLY MENTIONED THAT ASSESSEE COMPANY HAS FURNISHED THE REVISED COMPUTATION IN ITS SUBMISSION DATED 16 - 12 - 2012. APART FROM IT , WE COULD NOT FIND A NY SHOW CAUSE NOTICE ISSU ED TO THE ASSESSEE POINTING OUT OF NOT DISCLOSING THE CORRECT EFFECT OF SHORT TERM/LONG TERM PROFIT IN THE STATEMENT OF IN COME. N O MATERIAL IS BROUGHT TO OUR NOTICE WHICH DEMONSTRATE S THAT ABOVE DISCREPANCY WAS POINTED OUT TO THE ASSESSEE BY THE ASSESSING OFFICE R. LOOKING TO THE ABOVE FACTS AND CIRCUMSTANCES , WE ARE NOT INCLINED WITH THE DECISION OF LD. CIT(A), T HEREFORE, THE IMPUGNED PENALTY IS DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 21 - 01 - 20 20 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 21 /01/2020 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,