Bohra MMG Constructions Ltd., Kolkata V. ITO, Wd-11(3), Kolkata, Kolkata

ITA 429/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1772 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-04-2017
• Assessment Year: 1996-1997
• Appeal Filed On: 12-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S ALLONG YADEN CIT LD
• Assessee Lawyers: MANISH TIWARI F C A LD
• Keywords: Speculation loss

Judgement Text

1 ITA NO. 429/KOL/14 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA BEFORE: SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JU DICIAL MEMBER I.T.A NO. 429 /KOL/2014 A.Y 1996-97 M/S. BOHRA MMG VS. INCOME TAX OFFICER CONSTRUCTIONS LTD. WARD 11(3), KOLKATA PAN: AABCB 4373K [APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI MANISH TIWARI, FCA, L D.AR FOR THE RESPONDENT : SHRI SALLONG YADEN, ADDL.CI T, LD.SR.DR DATE OF HEARING : 08-06-2017 DATE OF PRONOUNCEMENT : 11-08-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), XII, KOLK ATA DT. 11-03- 2013 FOR THE A.Y 1996-97, WHEREIN THE CIT(A) CONFIR MED THE IMPUGNED PENALTY OF RS. 6,85,570/- IMPOSED BY THE A O U/S. 271(1) (C) OF THE ACT. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER TH E CIT(A) WAS JUSTIFIED IN CONFIRMING THE IMPUGNED PENALTY IMPOSE D BY THE AO U/S. 271(1) ( C) OF THE ACT IN THE FACTS AND CIRCUMSTANC ES OF THE CASE. 3. THE LD.AR SUBMITS THAT THE ASSESSEE CHALLENGED T HE ASSESSMENT ORDER DT.12-03-01 PASSED U/S. 147/144 O F THE ACT, WHICH WAS CONFIRMED BY THE CIT-A VIDE HIS ORDER DT. 07-1 0-02. THE TRIBUNAL IN SECOND APPEAL CONFIRMED THE ORDER PASSE D BY THE CIT-A VIDE ITS ORDER DT. 13-02-2004 IN ITA NO. 59/KOL/03. THUS ON CONFIRMATION BY THE TRIBUNAL, IMMEDIATELY THE AO IM POSED PENALTY OF RS.6,85,570/-. THE LD.AR FURTHER SUBMITS THAT THE T RIBUNAL DISMISSED THE QUANTUM APPEAL EXPARTE ORDER ON 13-02-2004. BY FILING OF MISC. 2 ITA NO. 429/KOL/14 APPLICATION (NO. 225/K/03) BY THE ASSESSEE THE SAID EX-PARTE ORDER WAS RECALLED. 4. THE TRIBUNAL DECIDED THE ISSUE ON MERITS AND DEL ETED THE ADDITION(S) MADE BY THE AO VIDE ITS ORDER DT. 04-0 4-08 AND PLACED ON RECORD VIDE PAPER BOOK. IN SUPPORT OF THE CONTEN TION, THE LD.AR OF THE ASSESSEE REFERRED TO 6 & 7 OF SUCH ORDER DT. 04 -04-08 AND ARGUED THAT THE TRIBUNAL BY RELYING ON THE DECISION OF THE HONBLE SPECIAL BENCH OF THIS TRIBUNAL AT KOLKATA IN THE CA SE OF VENKATESWAR INVESTMENT & FINANCE P.LTD REPORTED IN (2005) 277 I TR (AT) 20 DELETED THE ADDITION OF RS.14,43,000/- MADE ON ACCO UNT OF SPECULATIVE LOSS BY THE AO U/S.147/144 OF THE ACT A ND CONFIRMED BY THE CIT-A AND AS SUCH THE PENALTY IMPOSED BY THE AO HAS NO LEGS TO STAND IN THE EYE OF LAW. 5. ON THE OTHER HAND, THE LD.DR RELIED ON THE ORDER S OF THE AO AND THE CIT-A. 6. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. WE FIND THAT THIS TRIBUNAL DISMISSED THE AP PEAL EXPARTE ON 13-02-04. THEREAFTER, IMMEDIATELY THE AO IMPOSED PE NALTY U/S. 271(1)( C) OF THE ACT BY HIS ORDER DT. 24-09-04. FO R RECALLING THE SAID EXPARTE ORDER DT. 13-02-04 THE ASSESSEE FILED MISC. APPLICA TION ( MA NO. 225/K/03) AND VIDE ORDER DT. 18-01-08 THE SAID EXPARTE ORDER WAS RECALLED BY THE TRIBUNAL AND DECIDED THE APPEAL ON MERITS VIDE ITS ORDER DT. 04-04-08 BY FOLLOWING RATIO LAID DOWN BY THE SPECIAL BENCH OF ITAT AT KOLKATA IN THE CASE VENKATESWAR INVESTME NT & FINANCE P.LTD SUPRA DELETED THE ADDITION OF RS. 14,43,000/- MADE BY T HE AO U/S. 147/144 OF THE ACT AND CONFIRMED BY THE CIT-A. IN VIEW OF THE ORDER DT. 04-04-08 IN ASESSEES OWN CASE THE QUANTU M OF ADDITION WAS DELETED AND THEREFORE, THE IMPOSITION OF PENALT Y OF RS.6,85,570/- U/S. 271(1) ( C) OF THE ACT DOES NOT ARISE AND THE SAME IS CANCELLED. THUS, THE GROUND(S) RAISED BY THE ASSESSEE ARE ALLO WED. 3 ITA NO. 429/KOL/14 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11-08 -2017 SD/- SD/- P.M. JAGTAP S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : -08-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/ASSESSEE: M/S. BOHRA MMG CONSTRUCTIONS LT D 2A, GANESH CHANDRA AVENUE, 9 TH FLOOR, R.NO. 6A, KOLKATA-13. 2 RESPONDENT/REVENUE : INCOME TAX OFFICER, WARD 11(3) , P-7 CHOWRINGHEE SQUARE, KOLKATA-69. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BE NCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA