NISHA CAPITAL SERVICE LTD, MUMBAI V. ITO 7(1)(1), MUMBAI

ITA 2237/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4493 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 02-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Keywords: Capital receipt
• Section: 263

Judgement Text

M/S NISHA CAPITAL SERVICES LTD ITA NO. 2 2 3 7 /MUM/201 4 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI , , BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNT ANT MEMBER ITA NO. : 2 2 3 7 /MUM/201 4 (ASSESSMENT YEAR: 200 9 - 1 0 ) M /S NISHA CAPITAL SERVICES LTD , 3, NARAYAN BUILDING, 23, LN ROAD, HINDU COLONY, DADAR (E), MUMBAI - 400 0 14 .: PAN: AABCN 8266H VS COMMISSIONER OF INCOME - TAX - 7, AAYKAR BHAVAN, M K ROAD, MUMBAI - 400 030 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANUJ KISNADWALA RESPONDENT BY : SHRI N P SINGH /DATE OF HEARING : 05 - 01 - 201 6 / DATE OF PRONOUNCEMENT : 05 - 01 - 201 6 ORDER : . . : PER AMIT SHUKLA , JM : T HE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 10 . 0 2.201 4 , PASSED BY C OMMISSIONER OF INCOME T AX - 7 , MUMBAI LEVYING PEN ALTY UNDER SECTION 271(1)(C) FOR THE ASSESSMENT 2009 - 10, IN WAKE OF THE ORDER PASSED U/S 26 3 DATED 14.06.2013. 2. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS MAINLY CHALLENGED THE LEVY OF PENALTY OF RS. 14,89,61,678/ - BEING 150% OF THE AMOUNT OF RS. 27,90 ,54,118/ - AND RS.6,31,20,000/ - WHICH HAS B EEN TREATED AS CAPITAL RECEIPTS BY THE CIT IN HIS ORDER PASSED U/S 263. 3. BEFORE US, THE LD. COUNSEL SUBMITTED THAT , THE PENALTY HAS BEEN LEVIED BY LD. COMMISSIONER IN PURSUANCE OF HIS ORDER PASSED M/S NISHA CAPITAL SERVICES LTD ITA NO. 2 2 3 7 /MUM/201 4 2 U/S 263 DATED 14.06.2013. NOW THE SAID ORDER HAS BEEN QUASHED/ CANCELLED BY THE TRIBUNAL VIDE ORDER DATED 18.12.2014. THUS THERE IS NO BASIS FOR LEVY OF PENALTY. 4. LD CIT DR SUBMITTED THAT THE LD. COMMISSIONER HAS TREATED THE AMOUNT OF COMPENSATION RECEIVED IN LIEU OF RELINQUISHMENT OF ASSESSEES RIGHTS IN THE ASSETS AND BUSINESS OF THE FIRM CHARGEABLE AS CAPITAL GAIN . AFTER HOLDING SO, HE THEREAFTER HAS INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) HIMSELF. ONCE THE VERY BASIS OF LEVY OF PENALTY ORDER HAS BE EN QUASH ED THEN, ADMITTEDLY , THEREFORE, PENALTY ITSELF BECOME S UNSUSTAINABLE. 5. AFTER CONSIDERING THE AFORESAID SUBMISSIONS OF THE PARTIES, WE FIND THAT IT IS AN ADMITTED FACT THAT PENALTY U/S 271(1)(C) HAS BEEN LEVIED BY THE COMMISSIONER IN PURSUANCE OF HIS ORD ER DATED 14.06.2013 PASSED U/S 263. THE SAID ORDER NOW STANDS QUASHED BY THE TRIBUNAL VIDE ORDER DATED 18.12.2014 IN ITA NO. 5382/MUM/2013. THUS, THE PENALTY LEVIED DOES NOT HAVE ANY LEGS TO STAND AND, THEREFORE, SAME ALSO STANDS DELETED. 6. IN THE RESULT , APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH JANUARY , 201 6. SD/ - SD/ - ( ) ( ) (RAJESH KUMAR ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 5 TH JANUARY , 201 6 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / TH E RESPONDENT. 3) THE COMMISSIONER OF INCOME TAX 7, MUMBAI . 4 ) THE CIT /ADDL. CIT RG.7(1)/CONCERNED____, MUMBAI . 5 ) , , / M/S NISHA CAPITAL SERVICES LTD ITA NO. 2 2 3 7 /MUM/201 4 3 THE D.R. K BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS