NARESH KUKREJA, MUMBAI V. ITO 25(3)(1), MUMBAI

ITA 1976/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8196 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 29-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MITTAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH , JM ITA NO. 1976/ MUM/20 16 ( ASSESSMENT YEAR : 2009 - 10 ) SHRI NARESH KUKREJA 704/B, BARONET LOKHANDWALA TOWNSHIP KANDIVALI (EAST) MUMBAI 400 101 VS. ITO 25(3)(1), MUMBAI PAN/GIR NO. AA FPK5295G APPELLANT ) .. RESPONDENT ) ASSESSEE BY MS. NEHA PARANJPE REVENUE BY SHRI RAJESH MITTAL DATE OF HEARING 21 / 11 /201 7 DATE OF PRONOUNCEME NT 27/11 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 45, MUMBAI DATED 22/02/2016 FOR A.Y.2009 - 10, IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE IT ACT. 2. AT THE OUTSET LEA RNED AR PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN QUANTUM APPEAL DATED 13/09/2017 IN ITA NO.4044/MUM/2014 WHEREIN QUANTUM WAS DELETED BY THE TRIBUNAL. IT WAS CONTENDED BY LEARNED AR THAT SINCE QUANTUM HAS BEEN DELETED THE PENALTY SO IMPOSED HAS NO LEGS TO STAND. 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT PENALTY U/S. 271(1)(C) WAS IMPOSED WITH RESPECT TO DECLINE OF CAPITAL GAIN SO OFFERED ITA NO. 1976/MUM/2016 SHRI NARESH KUKREJA 2 BY THE ASSESSEE. WE FOUND THAT IN THE QUANTUM APPEAL DECIDED BY THE TRIBUNAL VIDE ORDER DATED 13/09/20 1, A SSESSEE S CLAIM OF LONG TERM CAPITAL GAIN WAS ACCEPTED AND AOS CONTENTION FOR TREATING THE SAME AS SHORT TERM CAPITAL GAIN WAS DECLINED. 4. WE FOUND THAT PENALTY HAS BEEN LEVIED BY THE AO WITH RESPECT TO SUCH TREATMENT OF SHORT TERM CAPITAL GAIN AND ASSESSEES CONTENTION HAS BEEN ACCEPTED BY THE TRIBUNAL AT PARA 6,7 AND 8. 5. LEARNED DR FAIRLY AGREED THAT QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL. 6. THE CONCLUSION OF TRIBUNAL IS CONTAINED AT PARA 8 WHICH READS AS UNDER: - 8. IN VIE W OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW FROM THE INTEND AND PURPOSE OF THE AGREEMENT TO SELL DEED 19 - 07 - 2004 AND SUBSEQUENT CANCELLATION DATED 03 - 12 - 2008 THAT THE PARTIES NEVER ACTED ON THE AGREEMENT AND SALE WAS NEVER COMPLETED. ACCORDI NGLY, WE ARE OF THE VIEW THAT THE SUBSEQUENT TRANSFER EFFECTED BY THE ASSESSEE VIDE AGREEMENT DATED 03 - 12 - 2008 FOR A SUM OF RS. 75 LACS IS TO BE CONSIDERED AS LONG TERM CAPITAL GAIN. IN VIEW OF THE ABOVE, WE DIRECT THE AO TO ASSESS THE CAPITAL GAIN AS LONG TERM CAPITAL GAIN INSTEAD OF SHORT TERM CAPITAL GAIN FOR THE ENTIRE PROPERTY WHICH IS UNDER DISPUTE. WE DIRECT THE AO ACCORDINGLY. THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. AS THE QUANTUM ITSELF HAS BEEN DELETED, THE PENALTY SO IMPOSED HAS NO LEGS TO S TAND. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 11 /2017 S D/ - ( AMARJIT SINGH ) S D/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 27 / 11 /201 7 KARUNA SR. PS ITA NO. 1976/MUM/2016 SHRI NARESH KUKREJA 3 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 21/11/2017 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 22/11/2017 (DICTATION PAD HAS BEEN ENCLOSED HEREWITH ALONGWITH ORIGINAL FILE ) SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO TH E HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//