ASSISTANT COMMISSIONER OF IT-33(2), MUMBAI V. KRISHNA C TANDON HUF, MUMBAI

ITA 2048/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8810 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 30-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Keywords: Business income
• Section: 143(3)

Judgement Text

ITA.NO.2048/MUM/2016 KRISHNA C.TANDON (HUF) ASSESSMENT YEAR-2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.2048/MUM/2016 ( / ASSESSMENT YEAR: 2009-10) ASSISTANT COMMISSIONER OF INCOME TAX 33(2) ROOM NO.608, C-12 6 TH FLOOR, PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX MUMBAI-400 051 / VS. KRISHNA C . TANDON ( HUF ) 1702,WING-1,WHISPERING PALMS AKURLI ROAD LOKHANDWALA TOWNSHIP KANDIVALI(EAST) MUMBAI-400 101 ! ./ ./PAN/GIR NO. AAGHK-2747-E ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : NONE RE VENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 24/10/2017 / DATE OF PRONOUNCEMENT : 01/11/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT Y EAR [AY] 2009- 10 ASSAILS THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)- 45 [CIT(A)], MUMBAI, APPEAL NO. CIT(A)-45/AC 25(3)/ITA 309/2014-15 ITA.NO.2048/MUM/2016 KRISHNA C.TANDON (HUF) ASSESSMENT YEAR-2009-10 2 DATED 25/01/2016. THE QUANTUM ASSESSMENT FOR IMPUGN ED AY WAS FRAMED BY LD. ASSISTANT COMMISSIONER OF INCOME TAX-25(3), MUM BAI [AO] ON 29/11/2011 U/S 143(3) WHEREAS PENALTY WAS LEVIED U/S 271(1)(C) VIDE ORDER DATED 28/03/2014. NONE HAS APPEARED FOR ASSESSEE DESPITE NOTICE. LEFT WITH NO OPTION, WE PROCEED TO DISPOSE- OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEA RING LD. DEPARTMENTAL REPRESENTATIVE [DR]. 2. THE REVENUE IS AGGRIEVED BY DELETION OF PENALTY U/S 271(1)(C) BY LD. CIT(A) AND HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY U/S.271(1)(C) AMOUNTI NG RS.60,59,108/- BEING 100% OF TAX LIABILITY. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT NO PENALTY IS LEVIABLE WHERE THERE IS CHANGE IN HEAD OF INCOME WITHOUT APPRECIATING THE FACT THAT THE REAL INTENTI ON OF THE ASSESSE WAS TO EVADE TAXES BY FURNISHING INACCURATE PARTICULARS. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE APPEAL OF THE ASSESSE HAS BEEN DISMISSED BY THE LD. CIT(A) HIMSELF FOR THE SAME ASSESSMENT Y EAR ON THE SAID ISSUE OF TREATMENT OF SHARE TRADING INCOME AS BUSINESS INCOM E BY THE A.O. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE LD.CIT (A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 3.1 FACTS LEADING TO THE SAME ARE THAT THE ASSESSEE BEING RESIDENT HUF EARNING SHARE TRADING INCOME & INCOME FROM OTHER SOURCES WAS ASSESSED FOR IMPUGNED AY U/S 143(3) ON 29/11/2011. THE ASSESSEE REFLECTED SHORT TERM CAPITAL LOSS & LONG TERM CAPITAL LOSS ON SHARES FOR RS.261.31 LACS & RS.18.28 LACS UNDER THE HEAD CAPITAL GAINS. HOWEVER, THE SAID ACTIVITY, IN THE OPINION OF LD. A O, WAS ASSESSABLE UNDER THE HEAD BUSINESS INCOME. THE STAND OF LD. AO, UPON APPEAL, WAS CONFIRMED BY LD. FIRST APPELLATE AUTHORITY IN APPEAL NO.CIT(A)- 35/ACIT 25(3)/ITA184/11-12 ORDER DATED 29/04/2013. ITA.NO.2048/MUM/2016 KRISHNA C.TANDON (HUF) ASSESSMENT YEAR-2009-10 3 3.2 CONSEQUENTLY, PENALTY PROCEEDINGS WERE INITIATE D DURING QUANTUM ASSESSMENT FOR FURNISHING OF INACCURATE PARTICULARS. THE ASSESSEE CONTESTED THE SAME ON THE PREMISES THAT FULL PARTIC ULARS WERE FURNISHED IN THE RETURN OF INCOME AND THERE WAS NO CONCEALMEN T OF INCOME AND MERE CHANGE OF HEAD OF INCOME DO NOT JUSTIFY IMPOSI TION OF PENALTY. HOWEVER, NOT CONVINCED, LD. AO INVOKING EXPLANATION-1 TO SECTION 271(1)(C) , LEVIED PENALTY OF RS.60,59,108/- VIDE ORDER DATED 28/03/2014. 4. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 25/01/2016 WHE RE THE LD. CIT(A) RELYING ON THE JUDGMENT OF BOMBAY HIGH COURT RENDER ED IN BENNETT COLEMAN & CO. LTD. [ITA NO. 2117/2012] & SEVERAL OTHER JUDGMENTS CONCLUDED THAT PENALTY WAS NOT LEVIABLE FOR MERE CH ANGE OF HEAD OF INCOME. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. THE LD. DR HAS PLACED RELIANCE ON THE STAND OF LD. AO AND C ONTENDED THAT PENALTY WAS JUSTIFIED SINCE THE ASSESSEE WAS OBLIGE D TO OFFER THE INCOME / LOSS UNDER THE CORRECT HEAD OF INCOME. 5. HEARD AND PERUSED RELEVANT MATERIAL ON RECORD. W E FIND THAT PENALTY HAS BEEN IMPOSED FOR MERELY CHANGE OF HEAD OF INCOME WHEREAS THERE IS NO CHANGE IN THE LOSS FIGURES OFFERED BY T HE ASSESSEE IN THE RETURN OF INCOME. THE ASSESSEE OFFERED THE LOSS UND ER THE HEAD CAPITAL GAINS WHICH, IN THE OPINION OF LD. AO, WAS ASSESSABLE UND ER THE HEAD BUSINESS INCOME. HOWEVER, THE BASIC CONDITION VIZ. FURNISHING OF INACCURATE PARTICULARS / CONCEALMENT OF PARTICULARS OF INCOME SO AS TO ATTRACT THE PROVISIONS OF SECTION 271(1)(C) HAVE RE MAINED UNFULFILLED IN THE PRESENT CASE. THEREFORE, PENALTY WAS NOT JUSTIF IED AND THE STAND OF ITA.NO.2048/MUM/2016 KRISHNA C.TANDON (HUF) ASSESSMENT YEAR-2009-10 4 LD. CIT(A) WAS QUITE FAIR & LOGICAL AND HENCE, THE SAME DO NOT REQUIRE ANY INTERFERENCE ON OUR PART. 6. RESULTANTLY, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01 ST NOVEMBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARW AL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 01.11.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. $'- , - , / DR, ITAT, MUMBAI 6. . / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI