I.T.O Wd - 7(4),kolkata, Kolkata V. M/s B.B.Investment Limited, Kolkata

ITA 1947/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92027 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 17-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MADHU MALATI GHOSH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC , KOLKATA ( BEFORE SHRI P.K.BANSAL , A . M . ) ITA NO. 1947 /KOL/201 3 : ASSTT. YEAR : 2007 - 08 ITO, WARD - 7(4), KOLKATA VS M/S. B. B. INVESTMENT LTD. PAN: AABCB 4470B (APPELLANT) (RESPONDENT) A PPELLANT BY : SMT. MADHUMALATI GHOSH, JCIT, SR.DR RESPONDENT BY : NONE DATE OF HEARING : 05 .06 .2015 DATE OF PRONOUNCEMENT : 05 .06 .2015 ORDER TH IS APPEAL HAS BEEN F ILED BY THE REVENUE AGAINST THE ORDER DATED 22.03 .2013 OF LD. CIT(A) - VI II , KOLK AT A FOR THE ASSESSMENT YE AR 2007 - 08 DELETING THE PENALTY LEVIED UNDER SECTION 271(1)(C) VIDE ORDER DATED 25.03.2010 . 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, EVEN THOUGH TH E NOTICE OF HEARING WAS DULY SERVED ON THE ASSESSEE. I, THEREFORE, DECIDED TO DISPOSE OF THE APPEAL, AFTER HEARING THE LD. DR. 3. BRIEF FACTS ARE THAT THE AO NOTED THAT THE ASSESSEE HAS SHOWN PROFIT FROM THE PURCHASE AND SALE OF SHARES AND DEBENTURES AT R S.15,64,166/ - AS LONG TERM CAPITAL GAINS IN RESPECT OF SHOWING THE SAME UNDER THE HEAD INCOME FROM BUSINESS . THE AO TREATED THE SAME AS INCOME FROM BUSINESS AND INITIATED THE PENALTY UNDER SECTION 271(1)(C) AND ULTIMATELY LEVIED THE PENALTY ON THE ASSESS EE FOLLOWING THE DECISION OF UNION OF I T A NO. 1947 /KOL/2013 M/S. B.B.INVESTMENT LTD. 2 INDIA VS - DHARMENDRA TEXTILE PROCESSORS 306 ITR 277, BY APPLYING THE EXPLANATION 1 TO SECTION 271(1)(C), HELD THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. WHEN THE MATTER WENT BEFORE THE CIT(A), T HE CIT(A) DELETED THE PENALTY, FOLLOWING THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT - VS - RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 BY HOLDING AS UNDER: IN THE LIGHT OF THE ABOVE DISCUSSION & FINDING, AFTER CAREFUL CONSIDERATION OF TH E APPELLANT'S SUBMISSION ALONG WITH THE CASE LAWS RELIED UPON, PERUSING THE FACTS OF THE CASE AND ALSO THE ASSESSMENT ORDER, IMPUGNED PENALTY ORDER AND OTHER MATERIALS AVAILABLE ON RECORD, I AM OF VIEW THAT SINCE THE APPELLANT DISCLOSED ITS INCOME IN THE R ETURN ON THE BONA FIDE BELIEF BASED ON THE OPINION OF A LEGAL EXPERT AND DISCLOSED THE PROFIT FROM SALE OF SHARES AS L TCG AND CLAIMED THE EXEMPTION U/ S 10(38) AT THE MOST IT CAN BE SAID THAT IT HAS COMMITTED AN ERROR AND AN ERROR IS NEVER TANTAMOUNT TO PEN ALTY AND ACCORDINGLY THE PROCEEDINGS UNDER SECTION 271 (1) (C) OF THE INCOME TAX ACT, 1961 IS MISCONCEIVED IN VIEW OF THE FACT THAT THE MISTAKE COMMITTED BASED ON THE BONA FIDE BELIEF OF AN EXPERT ADVICE CANNOT EXPOSE THE APPELLANT TO A CHARGE OF THE 'FURN ISHING OF INACCURATE PARTICULARS OF INCOME.' IT IS OBSERVED THAT THE APPELLANT DID NOT HIDE ANY FACT WHICH COULD LEAD TO THE CONCLUSION THAT THERE WAS AN INTENTION TO SUBVERT THE FACT EXISTED. MERELY IN THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT AG REED TO THE OPINION OF THE A.O. AND CHOOSE NOT TO DISPUTE THE ORDER AND PAID THE TAX DEMANDED CANNOT BE THE BASIS FOR LEVY OF PENALTY FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. UNDER THIS CIRCUMSTANCES AND AFTER CONSIDERING THE ENTIRE FACTS OF THE CASE AND RESPECTFULLY FOLLOWING THE DECISION OF THE HON 'BLE APEX COURT IN THE CASE OF CIT VS RELIANCE PETRO PRODUCTS PVT. LTD.(SUPRA) AND THE DECISION OF HON'BLE BENCH 'C' OF THE ITAT MUMBAI IN THE CASE OF ITO VS PARIAKH INVESTMENT AND I T A NO. 1947 /KOL/2013 M/S. B.B.INVESTMENT LTD. 3 DEVELOPMENT PVT. LT D.(SUPRA), IT IS HELD THAT THE PENALTY IS NOT LEVIABLE IN THE CASE OF THE APPELLANT AND PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF THE IT ACT, 1961 AT RS.5,26,496/ - IS HEREBY DELETED. THUS, THESE GROUNDS OF APPEAL OF THE APPELLANT ARE ALLOWED. 4. AFTER H EARING THE LD. DR AND CAREFULLY CONSIDERING HIS SUBMISSION. I AM OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE CIT(A). THE CIT(A) HAS RIGHTLY DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C), AS IN THIS CASE, THE ASSESSEE WAS UNDER A BONA FIDE BELIEF ON THE BASIS OF THE ADVICE OF THE EXPERT THAT THE INCOME IS CHARGEABLE UNDER THE HEAD LONG TERM CAPITAL GAIN . NO COGENT MATERIAL OR EVIDENCE WAS BROUGHT TO OUR KNOWLEDGE BY THE LD. DR THAT THE ASSESSEE WAS NOT UNDER THE BONA FIDE BELI EF. IN VIEW OF THIS FACT, I CONFIRM THE ORDER OF THE CIT(A) DELETING THE DISALLOWANCE. 5 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED . ORDER PRON OUNCED IN THE OPEN COURT ON 05 /06 /2015 . SD/ - ( P. K. BANSAL ) ACCOUNTANT MEMBER DATED: 05 /06 /2015 TALUKDAR/SR.PS 1 . M/S. B.B. INVESTMENT LTD. , 6B, SHAKESPEARE COURT, 21A, SHAKESPEARE SARANI, KOLKATA 700 0 17 2 ITO, WARD - 7 ( 4 ) , KOLKATA 3 . THE CIT(A), 4. CIT, 5. D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA I T A NO. 1947 /KOL/2013 M/S. B.B.INVESTMENT LTD. 4