ASST CIT 33(1), MUMBAI V. AMIT P. PANDYA, MUMBAI

ITA 2054/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7896 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIDHYADHAR V LD
• Assessee Lawyers: PRADEEP SAGARLD
• Keywords: Business income; Set aside
• Section: 271(1)(c); 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.2054/MUM/2018 ( / ASSESSMENT YEAR: 2009-10) A CIT - 33(1) ROOM NO. 711, 7 TH FLOOR BDG. NO. C-12, PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI - 400 051 / VS. SHRI AMIT P. PANDYA 2201, HEENA ELEGANCE CHS LTD. NEAR SAI BABA NAGAR OPP. BHATIA SCHOOL, BORIVALI (W) MUMBAI-400 092. ! ./ ./PAN/GIR NO. AFVPP-0474-K ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI PRADEEP SAGAR-LD.AR REVENUE BY : SHRI VIDHYADHAR V.LD.DR / DATE OF HEARING : 16/04/2019 / DATE OF PRONOUNCEMENT : 23/04/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 2009-10 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-45, MUMBAI [CIT(A)], APPEAL NO. CIT(A)-45/ACIT-33(1)/ITA-187/2016-17 DATED 12/12/2017 ON EFFECTIVE 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, WITHOUT APPRECIATING THE FACT THAT THE LD. CIT(A), HAS CONFIRMED THE ADDITION MADE BY THE AO IN QUANTU M APPEAL. 2 2. ON FACTS AND IN CIRCUMSTANCES OF THE CASE, AND I N LAW, THE LD. CIT(A) ERRED IN RELYING UPON THE CASE OF KANABAY SOFTWARE INDIA (P) LTD. VS. DC1T CIRCLE 8, PUNE (2009) 31 SOT 153, PUNE, 1TAT BENCH AND EVERGR EEN INVESTMENT SERVICES (P) LTD. OF THE ITAT MUMBAI, WHICH DO NOT SQUARELY APPLY TO THE PRESENT CASE. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CI T(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 2. FACTS LEADING TO THE DISPUTE ARE THAT THE ASSESS EE, A RESIDENT INDIVIDUAL, WAS ASSESSED FOR IMPUGNED AY U/S 143(3) ON 07/12/20 11 AT RS.66,720/- AS AGAINST RETURNED INCOME OF RS.58,860 /- E-FILED BY THE ASSESSEE ON 30/09/2009. THE ASSESSEE REFLECTED SHORT TERM CAPITAL LOSSES OF RS.149.94 LACS AND LONG-TERM CAPITAL LOSSES OF RS.11.90 LACS. THESE LOSSES WERE RELATED TO DEALING IN SHARES & SECURITIES. AFTER EXAMINING THESE TRANSACTIONS, LD. AO CAME TO A CONCLUSION THA T LOSS REFLECTED UNDER THE HEAD CAPITAL GAINS WERE TO BE TREATED AS BUSINESS LOSSES. ANOTHER ADDITION FOR RS.7,863/- WAS ALSO MADE IN THE HANDS OF THE ASSESSEE, BEING INTEREST REFLECTED IN AIR INFORMATION BUT WHICH WAS NOT OFFERED TO TAX BY THE ASSESSEE. THE STAND OF LD. AO HAS SINCE BEEN CONFIR MED BY LD. FIRST APPELLATE AUTHORITY. 3. ACCORDINGLY, PENALTY PROCEEDINGS U/S 271(1)(C) W ERE INITIATED IN QUANTUM ASSESSMENT ORDER ON BOTH THESE COUNTS FOR F URNISHING OF INACCURATE PARTICULARS OF INCOME. IN THE PENALTY PR OCEEDINGS, THE ASSESSEE WAS SADDLED WITH IMPUGNED PENALTY OF RS.50.03 LACS U/S 271(1)(C) BY LD. ASSESSING OFFICER VIDE PENALTY ORDER DATED 29/03/20 16. 4. THE ASSESSEE CONTESTED THE IMPOSITION OF PENALTY BEFORE LD. FIRST APPELLATE AUTHORITY WITH SUCCESS VIDE IMPUGNED ORDE R DATED 12/12/2017. THE LD. CIT(A) DELETED THE PENALTY QUA CHANGE OF HEAD OF LOSSES IN VIEW OF THE FACT THAT THERE WAS MERE CHANGE OF HEAD OF INCO ME UNDER WHICH THE LOSS 3 WAS OFFERED BY THE ASSESSEE VIS--VIS THE HEAD UNDE R WHICH THE LOSS WAS FINALLY ASSESSED BY THE LD. AO. FURTHER THE ISSUE W AS DEBATABLE ONE. MOREOVER, THERE WAS NO CHANGE IN RETURNED LOSS OR A SSESSED LOSS. IT WAS ALSO NOTED THAT SIMILAR PENALTY LEVIED FOR AY 2008- 09 WAS DELETED BY ITS PREDECESSOR ON IDENTICAL FACTS. THE PENALTY AGAINST ADDITION OF RS.7,863/- WAS ALSO DELETED FINDING STRENGTH IN ASSESSEES PLE A THAT THE SAME WAS PURELY HUMAN ERROR AND THE INTEREST WAS NOT RECEIVE D BY THE ASSESSEE. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 5. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD. UPON PERUSAL OF IMPUGNED ORDER, WE FIND THAT PENALTY WAS LEVIED BY LD. AO FOR MERE CHANGE OF HEAD OF INC OME, THERE BEING NO CHANGE IN OVERALL RETURNED LOSS AND ASSESSED LOSS. THE ASSESSEE OFFERED THE LOSS UNDER THE HEAD CAPITAL GAINS WHICH, IN THE OPINION OF LD. AO, WAS ASSESSABLE UNDER THE HEAD BUSINESS INCOME. THE ISSUE, AS RIGHTLY NOTED BY LD. CIT(A) WAS HIGHLY DEBATABLE ONE AND SUBJECT MAT TER OF NUMEROUS LITIGATIONS. NEVERTHELESS, THE BASIC CONDITION VIZ. FURNISHING OF INACCURATE PARTICULARS / CONCEALMENT OF PARTICULARS OF INCOME SO AS TO ATTRACT THE PROVISIONS OF SECTION 271(1)(C), IN OUR OPINION, HA VE REMAINED UNFULFILLED IN THE PRESENT CASE. THE SAME IS EVIDENT FROM THE FACT THAT PENALTY PROCEEDINGS U/S 271(1)(C) FOR AY 2010-11, ON IDENTI CAL FACTS, WAS DROPPED BY LD. AO HIMSELF VIDE ORDER DATED 24/05/2013, A CO PY OF WHICH IS ON RECORD. THEREFORE, PENALTY WAS NOT JUSTIFIED ON THI S COUNT, AS RIGHTLY HELD IN THE IMPUGNED ORDER. 6. SO FAR AS PENALTY AGAINST ADDITION OF RS.7,863/- IS CONCERNED, THE EXPLANATION AS FURNISHED BY THE ASSESSEE THAT THE S AME WAS HUMAN ERROR 4 SINCE THE INTEREST WAS NEVER RECEIVED, WAS PLAUSIBL E ONE AND THE PENALTY WAS RIGHTLY DELETED AGAINST THE SAME ALSO. FINDING THE STAND OF LD. CIT(A) IN THE IMPUGNED ORDER TO BE QUITE FAIR & LOGICAL, WE D ISMISS THE APPEAL. 7. RESULTANTLY, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD APRIL, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 23/04/2019 SR.PS, JAISY VARGHESE ! / 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.