Smt. Labhuben Dayaljibhai Patel, Ahmedabad V. The Dy.CIT.,Circle-2, Ahmedabad

ITA 371/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9092 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NO.371/AHD/2014 (ASSESSMENT YEAR:2008-09) LABHUBEN DAYALJIBHAI PATEL G-20, NEW MADHAVPURA MARKET NR. POLICE COMMISSIONER OFFICE, SHAHIBAUG ROAD, AHMEDABAD 380 004 APPELLANT VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2, PRATYAKSH KAR BHAVAN, PANJARAPOLE, AMBAWADI, AHMEDABAD - 380015 RESPONDENT PAN: AEYPP0555R /BY ASSESSEE : MS. URVASHI SHODHAN, A.R. /BY REVENUE : SHRI SAMIR VAKIL, SR. D.R. /DATE OF HEARING : 23.02.2017 /DATE OF PRONOUNCEMENT : 27.02.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST THE CIT(A)-II, AHMEDABADS ORDER DATED 06.12.2013, PASS ED IN APPEAL NO. CIT(A)-II/DCIT.CIR.-2/342/2013-14, UPHOLDING ASSESS ING OFFICERS ACTION ITA. NO. 371/AHD/2014 (LABHUBEN D PATEL VS. DCIT) A.Y. 2008-09 - 2 - IMPOSING PENALTY OF RS.6,02,108/-, IN PROCEEDINGS U /S.271(1)(C) OF THE INCOME TAX ACT, 1961, IN SHORT THE ACT. 2. LEARNED COUNSEL REPRESENTING ASSESSEE STATES AT THE OUTSET THAT THE ASSESSING OFFICER HAD NOT ACCEPTED ASSESSEES LONG TERM CAPITAL GAINS ARISING FROM 24000 OPTIONALLY FULLY CONVERTIBLE PREMIUM NOT ES (OFCPN) OF A COMPANY NAME M/S. NEEL MARKETING PVT. LTD. THEREBY TREATING THE SAME AS A SHAM TRANSACTION IN THE NATURE OF A COLOURABLE DEVI CE INTENDED TO INCREASE CAPITAL IN DEPOSITORS ACCOUNTS THEREBY REDUCING IN COME OF THE FAMILY HELD COMPANY BY CHARGING INTEREST ON SUCH INFLATED CAPIT AL. THIS REASON MADE HIM TO TREAT THE ABOVESTATED INCOME AS INCOME FROM OTH ER SOURCES. HE STATED TO HAVE FURTHER ISSUED THE IMPUGNED PENALTY NOTICE FOR BOTH FURNISHING OF INACCURATE PARTICULARS AS WELL AS CONCEALMENT OF IN COME AS PER ASSESSMENT ORDER DATED 09.11.2010. 3. LEARNED COUNSEL CONTINUES HER SUBMISSION. SHE S UBMITS THAT THE CIT(A) THEREAFTER RELIED UPON BOARDS CIRCULAR NO.2 /2002 DATED 15.02.2002 AS WELL AS ITS LETTER NO.225 DATED 12.03.1996 GOVERNIN G THE FIELD REGARDING TRANSFER OF BONDS BEFORE MATURITY. WE ARE INFORMED THAT THE ASSESSING OFFICER THEREAFTER RESUMED WITH THE PENAL PROCEEDIN GS IN QUESTION TO IMPOSE THE IMPUGNED PENALTY OF RS.6,02,108/- VIDE ORDER DA TED 18.02.2013 AS CONFIRMED IN COURSE OF THE LOWER APPELLATE ORDER. 4. LEARNED COUNSEL FILES BEFORE US A COPY OF THIS T RIBUNALS ORDER IN ASSESSEES QUANTUM APPEAL ITA NO.1193/AHD/2012 DECI DED ON 18.05.2016 ACCEPTING HIS COMPUTATION OF LONG TERM CAPITAL GAIN S. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE ALL THESE DEVELOPME NTS. WE CONCLUDE IN THIS FACTUAL BACKDROP THAT THE IMPUGNED PENALTY HAS NO L EGS TO STAND SINCE A ITA. NO. 371/AHD/2014 (LABHUBEN D PATEL VS. DCIT) A.Y. 2008-09 - 3 - QUANTUM ADDITION IN QUESTION ITSELF STANDS DELETED. WE ADOPT THE VERY COURSE OF ACTION FOR THE IMPUGNED PENALTY WHICH ALSO IS DE LETED. 5. THIS ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 27 TH DAY OF FEBRUARY, 2017.] SD/- SD/- ( PRADIP KUMAR KEDIA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 27/02/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0