ITO (IT) 4(2)(1), MUMBAI V. BALJI V. SWAMINATHAN, MUMBAI

ITA 3885/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2558 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 23-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.3885/MUM/2015 ASSESSMENT YEAR: 2009-10 INCOME TAX ACT OFFICER (INTERNATIONAL TAXATION)-4(2)(1) ROOM NO. 14, GROUND FLOOR SCINDIA HOUSE, BALLARD ESTATE MUMBAI 400038 / VS. SHRI BALAJI V. SWAMINATHAN 33-B, MAHINDRA PARK LBS MARG, GHATKOPAR (W) MUMBAI 400086 ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO. AAHPS6764Q / REVENUE BY SHRI KAILASH KANOJIYA !'# $ / ASSESSEE BY NONE % & $ ' / DATE OF HEARING : 18/07/2016 & $ ' / DATE OF ORDER: 20/07/2016 ITA NO. 3885/MUM/2015 SHRI BALAJI V. SWAMINATHAN 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 27/02/2015 OF LD. COMMISSIONER OF INCOME TAX, MUMBAI DELETING PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AMOUNTIN G TO RS.31,83,770/- WITHOUT APPRECIATING THAT PRIOR TO D ATE OF REGISTRATION ONLY A SMALL FRACTION OF SMALL COST WA S PAID BY THE ASSESSEE AS ADVANCE, THUS HAVING NO REGISTRATIO N RIGHT/OWNERSHIP IN THE PROPERTY, PRIOR TO REGISTRAT ION. 2. DURING HEARING THE LEARNED D.R., SHRI KAILASH KANOJIYA ADVANCED ARGUMENTS WHICH ARE IDENTICAL TO THE GROUND RAISED. WHEREAS NONE WAS PRESENT FOR THE ASS ESSEE IN SPITE OF ISSUANCE OF REGISTERED AD NOTICE. THE A SSESSEE NEITHER PRESENTED HIMSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE HAS NOTHING TO SAY. THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PART E, QUA THE ASSESSEE AND TEND TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE DECLARED INCOME OF RS.3,58,89 ,646/- IN HIS RETURN FILED ON 31.07.2009. DURING ASSESSMEN T PROCEEDINGS THE ASSESSEE FILED REVISED COMPUTATION OF INCOME, WHEREIN HE DECLARED INCOME OF RS.2,54,98,28 5/-. THE ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF ITA NO. 3885/MUM/2015 SHRI BALAJI V. SWAMINATHAN 3 RS.3,23,61,660/- UNDER SECTION 143(3) OF THE ACT WH EREIN THE LONG TERM CAPITAL GAIN, RETURNED BY THE ASSESSE E, WAS CONSIDERED AS SHORT TERM CAPITAL GAIN, AMOUNTING TO RS.3,17,31,060/-. CONSEQUENT TO THIS ASSESSMENT PEN ALTY OF RS.31,38,770/- WAS IMPOSED. 2.2 ON APPEAL BEFORE THE LEARNED CIT(A), CONSIDERIN G THE SUBMISSIONS OF THE ASSESSEE AND VARIOUS DECISIONS INCLUDING THE DECISION FROM HON'BLE APEX COURT IN C IT VS. RELIANCE PETROPRODUCTS (2010) 230 CTR (SC) 320, AND VARIOUS OTHER DECISIONS, THE PENALTY WAS DELETED. T HE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THE TR IBUNAL. 2.3 UNDER THE FACTS, AVAILABLE ON RECORD, QUESTION ARISES WHETHER THE PENALTY WAS RIGHTLY IMPOSED WHICH WAS D UE TO CHANGE OF HEADS OF INCOME. THE ASSESSING OFFICER AS SESSED THE CAPITAL GAIN, WHICH AROSE ON ACCOUNT OF TRANSFE R OF CAPITAL ASSETS, AS SHORT TERM CAPITAL GAIN, IN PLAC E OF LONG TERM CAPITAL GAIN RETURNED BY THE ASSESSEE. IT IS N OTED THAT THE LEARNED ASSESSING OFFICER HAS NOWHERE DISPUTED THE TRANSFER OF CAPITAL ASSETS. IT IS ALSO A FACT THAT THE MATERIAL FACTS WITH RESPECT TO TRANSFER OF CAPITAL ASSET WER E DULY DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME B Y CATEGORICALLY CLAIMING LONG TERM CAPITAL GAINS. THU S NEITHER THERE IS CONCEALMENT OF INCOME NOR FURNISHI NG OF INACCURATE PARTICULARS OF INCOME. THE ASSESSEE ALSO FORTIFIED BY THE DECISION FROM HON'BLE APEX COURT I N CIT VS. RELIANCE PETROPRODUCTS LTD. (SUPRA). PENALTY UNDER SECTION 271(1)(C) OF THE ACT CAN BE IMPOSED IN A SITUATION WHERE ITA NO. 3885/MUM/2015 SHRI BALAJI V. SWAMINATHAN 4 THE ASSESSEE EITHER FURNISHED INACCURATE PARTICULAR S OR CONCEALED ITS INCOME. IN THE PRESENT SETS OF FACTS EVEN THE ASSESSING OFFICER, AS MENTIONED EARLIER, CHANGED TH E HEAD OF INCOME FROM LONG TERM CAPITAL GAIN TO SHORT TERM CAPITAL GAIN. IN SUCH A SITUATION IT CAN BE CONCLUDED THAT AT LEAST PENALTY IS NOT LEVIABLE UNDER SECTION 271(1)(C) OF THE ACT, THUS WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN B Y THE LEARNED CIT(A). IT IS AFFIRMED, RESULTANTLY, THE AP PEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 18/07/2016. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ) DATED : 20/07/2016 AA P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1 1 2$ ( +, ) / THE CIT (IT), MUMBAI. 4. 1 1 2$ / CIT(A)-55, MUMBAI 5. 45 /$ ! , 1 +,' +! 6 , % / DR, ITAT, MUMBAI 6. 7' 8% / GUARD FILE. / BY ORDER, 04,$ /$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI