ITO 12(2)(4), MUMBAI V. RENUKA VASWANI, MUMBAI

ITA 3865/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2981 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-10-2015
• Assessment Year: 1999-2000
• Appeal Filed On: 15-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KISHORE CHAUDHARI
• Keywords: Business income; Question of law
• Section: 143(3); 14A; 260A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER / I .T A NO. 3865/MUM/2013 ( / ASSESSMENT YEAR : 1999 - 2000 THE ITO - 12(2) (4), AAYAKAR BHAVAN, MUMBAI - 400 020 / VS. SMT. RENUKA VASWANI, VASWANI GARDENS, 25, SOBANI ROAD, CUFFE PARADE, COLABA, MUMBAI - 400 021 ./ ./ PAN/GIR NO. : AAFPV 0325G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI SANJEEV KASHYAP / RESPONDENT BY: SHRI KISHORE CHAUDHARI / DATE OF HEARING : 27 .10. 2015 / DATE OF PRONOUNCEMENT : 27 .10 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 2 3 , MUMBAI D ATED 2 8 . 2 .201 3 PERTAINING TO ASSESSMENT YEAR 1999 - 2000. ITA. NO. 3865/M/2013 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) ERRED IN DELETING THE PENALTY LEVIED BY THE AO U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESSMENT ORDER DATED 28.3.2002 MADE U/S. 143(3) OF THE ACT. WHILE SCRUTINIZING THE RETURN OF INCOME, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE IS INDULGED IN SHARE TRADING AND ACCORDINGLY THE CLAIM OF THE ASSESSEE UNDER THE HEAD SHORT TERM CAPITAL GAINS W AS NOT ACCEPTED AND CONSEQUENTLY THE NET EARNINGS FROM THE SPECULATIVE SHARE TRANSACTIONS SHOWN AT RS. 14,19,043/ - WAS TREATED AS INCOME FROM SPECULATIVE BUSINESS. 3.1. AGAINST THIS BACKDROP, PENAL PROCEEDINGS WERE INITIATED U/S. 271(1)(C) OF THE ACT. 3.2. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE HONBLE HIGH COURT OF BOMBAY HAS ADMITTED THE FOLLOWING SUBSTANTIAL QUESTION OF LAW: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW WAS THE TRIBUNAL JUSTIFI ED IN TREATING THE INCOME OF THE APPELLANT FROM THE SALE OF SHARES AS BUSINESS INCOME AS AGAINST INCOME FROM SHORT TERM CAPITAL GAIN DECLARED IN THE RETURN OF INCOME FILED BY THE APPELLANT? 3.3. IT IS THE SAY OF THE LD. COUNSEL THAT ONCE A SUBSTANTIAL QUESTION OF LAW IS ADMITTED BY THE HONBLE HIGH COURT, NO CASE I S MADE OUT FOR LEVY OF PENALTY. RELIANCE WAS PLACED ON THE DECISION IN THE CASE OF ITA. NO. 3865/M/2013 3 M/S. NAVYAN BUILDERS AND DEVELOPERS IN TAX APPEAL NO. 415 OF 2012 , MUMBAI. 4. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY DISTINGUISHING DECISION IN FAVOUR OF THE REVENUE. 5. AFTER GOING CAREFULLY THROUGH THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF NAVYAN BUILDERS AND DEVELOPERS (SUPRA) HAS HELD AS UNDER: WE FIND THAT THIS APPEAL CANNOT BE ENTERTAINED AS IT DOES NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. THE IMPOSITION OF PENALTY WAS FOUND NOT TO BE JUSTIFIED AND THE APPEAL WAS ALLOWED. AS A PROOF THAT THE PENALTY WAS DEBATABLE AND ARGUABLE ISSUE, THE TRIBUNAL REFERRED TO THE ORDER ON ASSESSEES APPEAL IN QUANTUM PROCEEDIN GS AND THE SUBSTANTIAL QUESTIONS OF LAW WHICH HAVE BEEN FRAMED THEREIN. IN OUR VIEW, THERE WAS NO CASE MADE OUT FOR IMPOSITION OF PENALTY AND THE SAME WAS RIGHTLY SET ASIDE 6. A SIMILAR VIEW WAS TAKEN BY THE HONBLE HIGH COURT OF DELHI IN THE CASE OF LIQUID INVESTMENT AND TRADING CO. IN INCOME - TAX APPEAL NO. 240/2009. THE FINDINGS OF THE HONBLE HIGH COURT READ AS UNDER: B OTH THE CIT(A) AS WELL AS THE ITAT HAVE SET ASIDE THE PENALTY IMPOSED BY THE AO U/S. 271(1)(C) OF THE I.T. ACT, 1961 ON THE GROUND THAT THE ISSUE OF DEDUCTION U/S. 14A OF THE ACT WAS A DEBATABLE ISSUE. WE MAY ALSO NOTE THAT AGAINST THE QUANTUM ASSESSMENT WHERE UNDER DEDUCTION U/S. 14A OF THE ACT WAS PRESCRIBED TO THE ASSESSEE, THE ASSESSEE HAS PREFERRED AN APPEAL IN THIS COURT U/S. 260A OF THE ACT WHICH HAS ALSO BEEN ADMITTED AND SUBSTANTIAL QUESTION OF LAW FRAMED. THIS ITSELF SHOWS THAT THE ISSUE IS DEBA TABLE. FOR THESE REASONS, WE ARE OF THE OPINION THAT NO QUESTION OF LAW ARISES IN THE PRESENT CASE. ITA. NO. 3865/M/2013 4 RESPECTFULLY FOLLOWING THE DECISIONS REFERRED TO HEREINABOVE, IN OUR CONSIDERED OPINION, THIS IS NOT A FIT CASE FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. W E , THEREFORE, DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 27 TH OCTOBER , 2015 SD/ - SD/ - ( AMARJIT SINGH ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 27 TH OCTOBER , 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI