ITO 23(3)(1), NAVI MUMBAI V. ANJANA SINHA, NAVI MUMBAI

ITA 4351/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4102 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 20-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANA
• Keywords: Business income
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI .. , , , BEFORE, SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.4351/MUM/2014 ASSESSMENT YEAR:2007-08 ITO-22(3)(1), 3 RD FLOOR, TOWER NO.6, VASHI RLY. STATION COMPLEX, VASHI,NAVI MUMBAI 400705 / VS. MRS. ANJANA SINHA, E-2/22, BHIMA SHANKAR SOCIETY, SEC.19A, NERUL, NAVI MUMBAI-400706 ( ! / REVENUE) ( '#$% /ASSESSEE) PAN. NO. BFJPS7264F ! / REVENUE BY SHRI G.N. MAKWANA '#$% / ASSESSEE BY SHRI PRAKASH JHUNJHUNWALA & !'(%) / DATE OF HEARING : 03/02/2016 (%) / DATE OF ORDER: 04/02/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 31/03/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, ITA NO.4351/MUM/2014 MRS. ANJANA SINHA 2 DELETING THE PENALTY LEVIED U/S 271(1)(C) OF THE IN COME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING OF THIS APPEAL, SHRI G.N. MAKWA NA, LD. DR, DEFENDED THE IMPOSITION OF PENALTY BY THE L D. ASSESSING OFFICER BY CONTENDING THAT THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) DELETED THE PENALTY WITHOUT VA LID REASON. 2.1. ON THE OTHER HAND, SHRI PRAKASH JHUNJHUNWALA, LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BY CONTENDING THAT THE IMPUGNED ISSUE IS COVERED BY THE DECISION FROM HONBLE JURISIDICTIONAL HIGH COURT IN CIT VS BENNETT COLEMA N & COMPANY LTD. 259 CTR 383 (BOM.) AND THE DECISION IN CIT VS VAMCHAMPIGONS & AGRO PRODUCE 284 ITR 408 (DEL.). TH IS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE LD. DR. 2.2. 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.5,84,00 9/- IN HIS RETURN FILED ON 10/08/2007. THE CASE OF THE ASSESSE E WAS SELECTED FOR SCRUTINY. THE LD. ASSESSING OFFICER FR AMED ASSESSMENT U/S 143(3) BY TREATING EXEMPTED LONG TER M CAPITAL GAIN OF RS.39,76,007/- AS BUSINESS INCOME A ND FURTHER TREATING THE SHORT TERM CAPITAL GAIN OF RS. 11,384/- ON SHARES AS BUSINESS INCOME. ON APPEAL, BEFORE THE LD . COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSMEN T ORDER ITA NO.4351/MUM/2014 MRS. ANJANA SINHA 3 WAS CONFIRMED. THE ASSESSING OFFICER ISSUED PENALTY NOTICE DATED 16/02/2012 U/S 271(1)(C) AND FINALLY THE PENA LTY WAS IMPOSED. THE PENALTY ORDER WAS CARRIED IN APPEAL B EFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WHEREIN, THE WRITTEN SUBMISSIONS, CHALLENGING THE PENALTY, WERE FILED AND THE SAME WERE CONSIDERED. FINALLY, THE PENALTY WAS DELETED. THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, PENAL TY ORDER, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AV AILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE CO UNSEL, IF KEPT IN JUXTAPOSITION AND ANALYZED, THERE IS NO DIS PUTE TO THE FACT THAT THE ASSESSEE IS A SALARIED PERSON ALSO IN VESTED IN SHARES AND THE GAINS WERE TREATED AS LONG TERM AS W ELL AS SHORT TERM CAPITAL GAINS. AS AND WHEN THE ASSESSEE WAS DEALING IN DERIVATIVES I.E. FUTURE OPTIONS, THE SAI D INCOME IS TREATED AS BUSINESS INCOME, THEREFORE, THERE IS NO QUESTION OF FURNISHING OF INACCURATE PARTICULARS, MORE SPECIFIC ALLY WHEN THE DETAILS OF TRANSACTIONS I.E. SALES AND PURCHASE S OF SHARES AND SECURITIES WERE DULY DISCLOSED IN THE RETURN AL ONG WITH THE DETAILS OF EXPENSES/DEDUCTIONS, THUS, IT IS NOT A CASE, WHERE IT CAN BE CONCLUDED THAT ASSESSEE CONCEALED A NY INFORMATION FROM THE DEPARTMENT. THE RATIO LAID DOW N IN ANANT OVERSEAS PVT. LTD. (2015) 54 TAXMAN.COM 211 (DEL.),WHEREIN THE ASSESSEE WAS ENGAGED IN INVESTME NT IN SHARES AND SECURITIES CUM BUSINESS OF SHARES AND SE CURITIES ITA NO.4351/MUM/2014 MRS. ANJANA SINHA 4 DECLARED SHORT TERM CAPITAL GAIN, ON SALE OF SHARES AND THE LD. ASSESSING OFFICER HELD THE TRANSACTIONS RELATED TO TRADING OF SHARES AS BUSINESS INCOME. PENALTY U/S 271(1)(C ) WAS IMPOSED. SINCE, THE TRANSACTION WAS DULY DECLARED A ND THE SHARES WAS HELD IN STOCK IN TRADE, LEVY OF PENALTY WAS HELD TO BE UNJUSTIFIED. IDENTICAL RATIO WAS LAID DOWN IN C IT VS AMIT JAIN (2013) 351 ITR 74 (DEL.) ; 153 DTR 175 (DEL.) ; 258 CTR 88 (DEL.). THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS BENNET COLEMAN & COMPANY LTD. (SUPRA), IDENTICALLY DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. IDENTICAL RATI O WAS LAID DOWN IN CIT VS VAMCHAMPIGONS & AGROS PRODUCE (2006) 284 ITR 408 (DEL.) AND ACIT VS SUDARSHAN FISCAL SERVICE S PVT. LTD. (2009) 28 CCH 497 (MUM. TRIB.). IT IS NOTED TH AT WHILE FILING THE RETURN, THE ASSESSEE DECLARED THE NECESS ARY DETAILS AND THE SAME WERE EXAMINED BY THE ASSESSING OFFICER , THEREFORE, AT LEAST, IT CAN BE SAID THAT THE ASSESS EE NEITHER FURNISHED INACCURATE PARTICULARS NOR CONCEALED ITS INCOME, THEREFORE, THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) RIGHTLY DELETED THE PENALTY. WE AFFIRM THE SAME. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 03/02/2016. ( G.S. PANNU ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ITA NO.4351/MUM/2014 MRS. ANJANA SINHA 5 & ' MUMBAI; + DATED : 04/02/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. , -. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 11 & 2% ( , ) / THE CIT, MUMBAI. 4. 11 & 2% / CIT(A)- , MUMBAI 5. 4!5/%' , 1, ),'6 , & ' / DR, ITAT, MUMBAI 6. 7#8' / GUARD FILE. / BY ORDER, 04%/% //TRUE COPY// / (DY./ASSTT. 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