SUSHMITA SEN, MUMBAI V. ACIT 11(1), MUMBAI

ITA 4351/MUM/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2477 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 14-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN LD
• Assessee Lawyers: NIRALI SANGHAVI LD ARS; ASTAD RANDERIA
• Keywords: Business income; Source of fund; Additional evidence; Capital receipt
• Section: 143(3); 28

Judgement Text

ITA.NO.4351-52/MUM/2015 ASSESSMENT YEAR-2004-05 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI SAKTIJIT DEY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.4351/MUM/2015 ( / ASSESSMENT YEAR: 2004-05) SUS H MITA SEN 6 TH & 7 TH FLOOR SADGURU SUNDARI DR. AMBEDKAR ROAD KHAR (W), MUMBAI / VS. ASSISTANT COMMISSIONER OF INCOME TAX-11(1) ROOM NO.467 AAYKAR BHAVAN, M.K.ROAD MUMBAI-400 020 '# ! ./ ! ./PAN/GIR NO. ABPPS-3422-C ( #% /APPELLANT ) : ( &'#% / RESPONDENT ) & ! ./I.T.A. NO.4352/MUM/2015 ( / ASSESSMENT YEAR: 2004-05) SUS H MIT A SEN 6 TH & 7 TH FLOOR SADGURU SUNDARI DR. AMBEDKAR ROAD KHAR (W), MUMBAI / VS. ASSISTANT COMMISSIONER OF INCOME TAX-11(1) ROOM NO.467 AAYKAR BHAVAN, M.K.ROAD MUMBAI-400 020 '# ! ./ ! ./PAN/GIR NO. ABPPS-3422-C ( #% /APPELLANT ) : ( &'#% / RESPONDENT ) ASSESSEE BY : ASTAD RANDERIA & NIRALI SANGHAVI, LD. ARS REVENUE BY : ASGHAR ZAIN, LD.DR / DATE OF HEARING : 24/09/2018 / DATE OF PRONOUNCEMENT : 14/11/2018 / O R D E R ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 2 PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEALS BY ASSESSEE FOR ASSESSMENT YEA R [IN SHORT REFERRED TO AS AY] 2004-05 CONTEST THE ORDERS OF LD. FIRST APPELLATE AUTHORITY QUA CONFIRMATION OF CERTAIN ADDITION AS WELL AS PENALTY U/S 271(1)(C). SINCE THE PENALTY ARISES OUT OF QUANTUM ADDITION, BOTH THE APPEALS ARE BEING DISPOSED-OFF BY WAY OF THIS COMMO N ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. FIRST WE TAKE UP QUANTU M APPEAL ITA NO. 4352/MUM/2015 WHICH CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME- TAX (APPEALS)-4, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO.CIT(A)-4/TR-26/APPEAL-(3)/ACIT.11(1)/2014-15 DATED 24/03/2015 BY RAISING FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -4, MUMBAI HAS ERRED, IN LAW AND THE FACT AND CIRCUMSTANCES OF THE CASE IN C ONFIRMING CERTAIN ADDITIONS OF THE ORDER OF THE LEARNED ACIT 11(1) MUMBAI. 2. THE LEARNED CIT(A) HAS ERRED, IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONSIDERING THE CAPITAL RECEIPT OF RS.95,00,000/ - RECEIVED FROM M/S. COCA COLA INDIA LTD. AS INCOME LIABLE TO TAX. THE APPELL ANT RESPECTFULLY SUBMITS THAT THE ADDITIONS OF THIS SUM MAY KINDLY BE DELETED. THIS IS SECOND ROUND OF APPEAL SINCE THE MATTER, IN THE FIRST ROUND, WAS SET ASIDE BY THE TRIBUNAL TO THE FILE OF LD. CIT(A) WITH CERTAIN DIRECTIONS. PURSUANT TO THE AFORESAID DIRECTIONS, THE MATTER HA S BEEN RECONSIDERED BY FIRST APPELLATE AUTHORITY WHEREIN CERTAIN QUANTU M ADDITIONS AS MADE BY LD. AO HAVE BEEN CONFIRMED AGAINST WHICH THE ASS ESSEE IS UNDER APPEAL BEFORE US. 2.1 FACTS GERMANE TO THE ISSUE ARE THAT THE ASSESSE E [HEREINAFTER REFERRED TO AS SS ] BEING RESIDENT INDIVIDUAL IS A FILM ACTRESS BY PROFESSION. THE ASSESSEE WAS ASSESSED IN SCRUTINY A SSESSMENT U/S ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 3 143(3) ON 11/12/2006 BY LD. ASSISTANT COMMISSIONER OF INCOME TAX- CIRCLE 11(1), MUMBAI [IN SHORT REFERRED TO AS AO] AT RS.258.91 LACS AFTER CERTAIN ADDITIONS AS AGAINST RETURNED INCOME OF RS.157.54 LACS FILED BY THE ASSESSEE ON 01/11/2004. THE ASSESSEE D ERIVED INCOME BY WAY OF FEES FOR ACTING ASSIGNMENT IN FILMS, STAGE S HOWS AND BY WAY OF ENDORSEMENTS. THE ADDITION OF RS.95 LACS REPRESENTI NG CERTAIN RECEIPTS FROM COCA COLA IS THE SOLE SUBJECT MATTER OF DISPUTE BEFORE US. 2.2 DURING ASSESSMENT PROCEEDINGS, IT TRANSPIRED TH AT THE ASSESSEE RECEIVED A SUM OF RS.145 LACS FROM A MULTI-NATIONAL COMPANY NAMELY M/S COCA COLA INDIA LIMITED [IN SHORT REFERRED TO AS CC IL / COMPANY] BUT OFFERED ONLY A PART OF THE SAME I.E. RS.50 LACS TO TAX AND CLAIMED THE BALANCE RS.95 LACS TO BE CAPITAL RECEIPTS IN NATURE IN VIEW OF THE FACT THAT THE SAME REPRESENTED COMPENSATION RECEIVED BY ASSESSEE TOWARDS DAMAGES CAUSED TO ASSESSEES REPUTATION. HOWEVER, THE FAILURE TO SUBSTANTIATE THE SAME WITH SUFFICIENT DOCUMENTARY E VIDENCES AND FOR WANT OF PROPER JUSTIFICATION THEREOF RESULTED INTO IMPUGNED ADDITION IN THE HANDS OF THE ASSESSEE. THE SAME UPON CONFIRMATION B Y LD. FIRST APPELLATE AUTHORITY ON 19/03/2008 CAME UP FOR HEARI NG BEFORE THE TRIBUNAL VIDE ITA NO. 5132/MUM/2018 ORDER DATED 14/01/2011 WHEREIN THE MATTER WAS REMITTED BACK TO THE FILE OF LD. CIT (A) WITH FOLLOWING DIRECTIONS / OBSERVATIONS:- 12. KEEPING IN VIEW THE DECISION OF HONBLE GAUHATI HIGH COURT IN THE CASE OF RANJEET KUMAR CHOUDHURY (SUPRA) AND HAVING REGARD T O THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE IMPUGNED ORDER OF THE LD. CIT(A) DISPOSING OF THE APPEAL OF THE ASSESSEE BY ADMITTING THE ADDITIONAL EVIDENCE W ITHOUT COMPLYING WITH THE MANDATORY REQUIREMENTS OF RULE 46-A IS REQUIRED TO BE SET ASIDE AND THE MATTER HAS TO BE REMITTED BACK TO HIM FOR DECIDING THE APPEAL OF THE ASSESSEE AFRESH ON MERITS AS PER LAW. WE FIND NO MERIT IN THE OBJECTION RAISE D BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THIS REGARD THAT THE REVENUE HAS NOT CH ALLENGED THE ORDER OF THE LD. ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 4 CIT(A) ON THIS ISSUE BY FILING ANY APPEAL OR CROSS OBJECTION. IN OUR OPINION, THE ISSUE RELATING TO THE ADMISSION OF ADDITIONAL EVIDENCE WI THOUT PASSING ANY SPEAKING ORDER OR WITHOUT ALLOWING ANY OPPORTUNITY TO THE A.O. TO EXAMINE THE SAME HAS BEEN DECIDED BY THE LD. CIT(A) AGAINST THE REVENUE AND A S A RESPONDENT, THE REVENUE IS AT LIBERTY TO RAISE THE SAID ISSUE AS PER RULE 27 O F APPELLATE TRIBUNAL RULES, 1963. EVEN OTHERWISE, IF THE ORDER OF THE LD. CIT(A) IS F OUND TO BE PASSED IN VIOLATION OF MANDATORY RULE 46-A, THE TRIBUNAL, IN OUR OPINION, IS DULY EMPOWERED TO SET ASIDE THE SAME WITH A DIRECTION TO THE LD. CIT(A) TO MAKE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER COMPLYING WITH THE SAID RULE. WE, TH EREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO H IS FILE WITH A DIRECTION TO DISPOSE OF THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WIT H LAW AFTER COMPLYING WITH THE REQUIREMENTS OF RULE 46-A. UPON PERUSAL, IT EMERGES THAT THE MATTER WAS SET AS IDE TO THE FILE OF LD. CIT(A) PRIMARILY IN VIEW OF THE FACT THAT ADDITIONA L EVIDENCES WERE CONSIDERED BY THE FIRST APPELLATE AUTHORITY IN VIOL ATION OF RULE 46A. 2.3 PURSUANT TO THE AFORESAID DIRECTIONS OF THE TRI BUNAL, THE MATTER WAS RECONSIDERED BY THE LD. FIRST APPELLATE AUTHORITY V IDE IMPUGNED ORDER DATED 24/03/2015 WHEREIN ADDITIONAL EVIDENCES SUBMI TTED BY THE ASSESSEE WERE REMANDED TO LD. AO. THE REMAND REPORT WAS FURNISHED BY LD. AO ON 22/12/2014, THE CONTENTS OF WHICH HAVE BEEN EXTRACTED AT PARA 4.3.1 OF THE IMPUGNED ORDER WHEREIN LD. AO OPINED THAT TH E AMOUNT OF RS.145 LACS RECEIVED BY THE ASSESSEE WAS IN LIEU OF SETTLEMENT BETWEEN THE TWO PARTIES FOR BREACH OF TERMS OF CELEBRITY ENGAGEMENT CONTRACT [IN SHORT COMMERCIAL CONTRACT / CONTRACT] DATED 11/02/2002 AND THEREFORE, THE STATED AMOUNT WAS TAXABLE IN THE HAN DS OF THE ASSESSEE. IN DEFENCE, THE ASSESSEE BY WAY OF WRITTEN SUBMISSI ONS, INTER-ALIA, SUBMITTED THAT THE ASSESSEE ENTERED INTO A COMMERCI AL CONTRACT WITH CCIL TO ENDORSE / PROMOTE THE PRODUCTS OF CCIL FOR CONSIDERATION OF RS.1.50 CRORES. FOR CERTAIN REASONS, THE SAID COMME RCIAL CONTRACT WAS CANCELLED / TERMINATED PREMATURELY AND ACCORDINGLY, A SETTLEMENT AGREEMENT DATED 18/09/2003 WAS ENTERED PURSUANT TO WHICH THE ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 5 ASSESSEE RECEIVED A SUM OF RS.1.45 CRORES. IT WAS F URTHER SUBMITTED THAT THE FULL AMOUNT OF RS.1.45 CRORES WAS RECEIVED AS C OMPENSATION IN LIEU OF SEXUAL HARASSMENT CASE FILED BY THE ASSESSEE AGA INST AN EMPLOYEE OF CCIL . HOWEVER, OUT OF ABUNDANT CAUTION, THE ASSESSEE CO NSIDERED A SUM OF RS.50 LACS WHICH WAS OUTSTANDING AMOUNT DUE TO HER UNDER THE COMMERCIAL CONTRACT AS HER INCOME. IT WAS SUBMITTED THAT EXTRA COMPENSATION RECEIVED BY THE ASSESSEE WAS NOT AS PE R THE TERMS OF THE CONTRACT AND THEREFORE, THE EXTRA RECEIPTS, BEING C APITAL IN NATURE WAS NOT TAXABLE IN THE HANDS OF THE ASSESSEE. THE ATTENTION WAS ALSO DRAWN TO THE FACT THAT UNDER THE CONTRACTUAL TERMS, ONLY AN AMOUNT OF RS.50 LACS WAS DUE TO THE ASSESSEE. IT WAS ALSO SUBMITTED THAT THE CCIL HAD RAISED A CLAIM OF RS.145 LACS AGAINST THE ASSESSEE FOR NON PERFORMANCE OF CONTRACTUAL COMMITMENT WHEREAS SUBSEQUENTLY, IN CON TRAST, IT PAID THE COMPENSATION TO THE ASSESSEE WHEN THE ASSESSEE HAD STILL NOT PERFORMED THE CONTRACTUAL COMMITMENT. THEREFORE, TH E ONLY LOGICAL DEDUCTION WAS THAT THE COMPANY ACCEPTED THE CONTENT ION OF THE ASSESSEE OF THE ALLEGED SEXUAL HARASSMENT AND PAID THE COMPENSATION TO AVOID NEGATIVE PUBLICITY / EMBARRASSMENT WHICH W OULD HAVE JEOPARDIZED THE BUSINESS OF THE COMPANY WORLD OVER. THEREFORE, THE ADDITIONAL COMPENSATION WAS NOT TOWARDS THE SERVICE RENDERED AND DID NOT ARISE OUT OF THE CONTRACTUAL TERMS. THE SUBMISS IONS OF THE ASSESSEE HAVE BEEN EXTRACTED ON PAGES 4 TO 6 OF THE IMPUGNED ORDER WHEREAS THE CONTENTS OF THE REMAND REPORT FURNISHED BY LD. AO H AVE BEEN EXTRACTED ON PAGES 7 TO 10 OF THE IMPUGNED ORDER. HOWEVER THE SAME COULD NOT FIND FAVOR WITH FIRST APPELLATE AUTHORITY, WHO CONF IRMED THE ADDITIONS BY OBSERVING AS UNDER:- ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 6 5.2.2.1 THE APPELLANT IS A FILM ACTRESS AND HAS BEE N DERIVING INCOME UNDER THE HEAD 'BUSINESS & PROFESSION', 'INCOME FROM HOUSE PROPERT Y' AND 'INCOME FROM OTHER SOURCES'. THE APPELLANT HAS BEEN RECEIVING BUSINESS AND PROFESSION INCOME BY WAY OF FEES FOR ACTING ASSIGNMENTS IN VARIOUS FILMS, ST AGE SHOWS IN INDIA AND ABROAD AND VARIOUS COMMERCIAL ENDORSEMENTS. DURING THE F.Y.200 3-04 RELEVANT TO A.Y.2004-05, THE APPELLANT HAD RECEIVED A SUM OF RS.1.45 CRORES FROM M/S. COCA COLA INDIA LTD. IN TERMS OF CLAUSE-2 OF THE SETTLEMENT AGREEMENT DA TED 18.09.2003. THE RELEVANT CLAUSE-2 OF THE SETTLEMENT AGREEMENT DATED 18.09.20 03 MAY BE REPRODUCED AS UNDER :- '2. COCA-COLA AGREES TO PAY TO SS, ON OR BEFORE SIGNING OF THIS AGREEMENT, A SUM OF RS.1,45,00,000/- (RUPEES ONE CRORE FORTY-FIVE LACS ONLY) AS COMPENSATION, WITHOUT ADMISSION OF LIABILITY, TOWARDS SS'S ALLEGED CLAIMS AGAINST COCA-COLA ARISING OUT OF, OR IN RELATION TO THE CELEBRITY AGREEMENT, AND SUBSEQUENT TERMINATION THEREOF AS HEREINABOVE STATED. THE SAID AMOUNT SHALL BE ACCEPTED BY SS IN FULL AND FINAL SETTLEMENT FOR ALL HER CLAIMS AGAINST COCA-COLA ARISING OUT OF OR IN RELATION TO THE CELEBRITY AGREEMENT AND THE SUBSEQUENT TERMINATION THEREOF, AND SS CONFIRMS THA T SHE HAS NO CLAIM OF WHATSOEVER NATURE AGAINST COCA-COLA.' 5.2.2.2 WHEREAS, THE APPELLANT HAD RECEIVED THE AFO RESAID SUM OF RS.1.45 CRORES FROM M/S.COCA COLA INDIA LTD., IT HAD OFFERED TO TA X ONLY A SUM OF RS.50,00,000/- AS INCOME AND THE REMAINING AMOUNT OF RS.95,00,000/- W AS TREATED BY HER AS A CAPITAL RECEIPT NOT CHARGEABLE TO TAX. UNDISPUTEDLY, THE AP PELLANT HAD RECEIVED COMPENSATION FOR TERMINATION OF A CONTRACT BUT SUCH CONTRACT WAS ONE OF MANY WHICH THE APPELLANT HELD INCLUDING, INTER-ALIA, PROFESSIO NAL CONTRACTS FOR ACTING IN FILMS, PROFESSIONAL CONTRACTS FOR STAGE SHOWS AND PROFESSI ONAL CONTRACTS FOR COMMERCIAL ENDORSEMENT. THE TERMINATION OF CONTRACT WITH M/S.C OCA COLA INDIA LTD. DID NOT IMPAIR THE PROFIT-MAKING STRUCTURE OF THE APPELLANT , BUT WAS WITHIN THE FRAMEWORK OF APPELLANT'S BUSINESS AND PROFESSION, IT BEING A NEC ESSARY INCIDENT OF THE BUSINESS THAT THE CONTRACT MAY BE TERMINATED AND FRESH COMME RCIAL ENDORSEMENTS AND FRESH PROFESSIONAL CONTRACTS FOR ACTING IN FILMS AND STAG E SHOWS ETC. MAY BE TAKEN. UNDISPUTEDLY, THE SAID PAYMENT HAS BEEN MADE TO COM PENSATE THE APPELLANT FOR CANCELLATION OF A CERTAIN CONTRACT WHICH DID NOT AF FECT THE TRADING STRUCTURE OF APPELLANT'S BUSINESS AND PROFESSION, NOT DEPRIVED H ER OF WHAT IN SUBSTANCE IS HER SOURCE OF INCOME. THE IMPUGNED TERMINATION OF CONTR ACT BEING A PART AND PARCEL OF BUSINESS AND PROFESSION AND SUCH CANCELLATION OF CO NTRACT LEAVES HER FREE TO CARRY ON HER BUSINESS AND PROFESSION (FREED FROM THE CONT RACT TERMINATED). EVEN IF THE SAID CONTRACT WAS TERMINATED, THE APPELLANT HAD OTHER PR OFESSIONAL AND BUSINESS INCOME AS WELL AS OTHER SOURCES OF INCOME. SUCH TERMINATIO N OF CONTRACT DID NOT AMOUNT TO A LOSS OF AN ENDURING ASSET CAUSING AN ABRUPT CLOSE-D OWN OF THE BUSINESS AND PROFESSION, DISLOCATING THE ENTIRE STRUCTURE OF THE BUSINESS AND PROFESSION EARNING APPARATUS. HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RAI BAHADUR JAIRAM VALJI (1959) 35 ITR 148, 163 (SC) HAS HELD THAT ONCE IT IS FOUND THAT A CONTRACT WAS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS, AN Y COMPENSATION RECEIVED FOR ITS TERMINATION WOULD BE A REVENUE RECEIPT, IRRESPECTIV E OF WHETHER ITS PERFORMANCE WAS TO CONSIST OF A SINGLE ACT OR A SERIES OF ACTS SPRE AD OVER A PERIOD. THEREFORE, THE ENTIRE RECEIPT OF RS.1.45 CRORES AND NOT ONLY RS.50 LACS, IS A REVENUE RECEIPT. 5.2.2.3 SECONDLY, SO FAR AS THE FISCAL PROVISIONS O F THE ACT ARE CONCERNED, WHENEVER THERE IS A RECEIPT OF AN AMOUNT BY AN ASSESSEE, IT IS NOT THE NATURE OF THE RECEIPT UNDER THE GENERAL LAW THAT DETERMINES ITS NATURE FO R THE PURPOSE OF THE ACT BUT THE ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 7 RECEIPT WOULD HAVE TO BE CONSIDERED UNDER THE PROVI SIONS OF THE ACT FROM THE COMMERCIAL POINT OF VIEW. STRONG RELIANCE IS PLACED ON THE HON'BLE BOMBAY HIGH COURT DECISION IN THE CASE OF CIT VS. SCINDIA WORKSHOP LTD. (1979) 119 ITR 526, 531 (BOM). THEREFORE, FROM THE COMMERCIAL POINT OF VIEW, SU CH RECEIPT OF RS.1.45 CRORES IS A REVENUE RECEIPT THAT AROSE BY WAY OF TE RMINATION OF COMMERCIAL CONTRACT (CELEBRITY AGREEMENT) AND BY WAY OF SETTLEMENT AGRE EMENT DATED 18.09. 2003. HON'BLE SUPREME COURT IN THE CASE OF CIT VS. PANBARI TEA COMPANY LTD. (1965) 57 ITR 422, 425 (SC) HAS HELD THAT THE NOMENCLATURE USED MAY NOT BE DEC ISIVE BUT IT HELPS THE COURT, HAVING REGARD TO THE OTHER CIRC UMSTANCES, TO ASCERTAIN THE INTENTION OF THE PARTIES. HON'BLE ALLAHABAD HIGH CO URT IN THE CASE OF SETH BANARSI DAS GUPTA VS. CIT (1971) 81 ITR 170 (ALL) HAS HELD THAT THE AMOUNT RECEIVED BY THE ASSESSEE UNDER A COMPROMISE DECREE, IN A SUIT F OR SETTING ASIDE THE LEASE WAS A REVENUE RECEIPT. SIMILARLY, IN THE CASE OF UNITED CONSTRUCTION CONTRACTORS VS. CIT (1994) 208 ITR 914, 919-20 (KER) . FOLLOWING CIT VS. GOVINDA CHAUDHARY & SONS (1993) 203 ITR 881 (SC), DISPUTE REGARDING PAYMENT DUE FROM PWD WAS SETTLED THROUGH ARBITRATION. SUCH AMOUNT ALONG WITH INTERES T WERE HELD TO BE REVENUE RECEIPT EVEN THOUGH PAYMENT WAS DELAYED AS A RESULT OF CERT AIN DISPUTES. 5.2.2.4 HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE ABOVE, THE ENTIRE RECEIPT OF RS.1.45 CRORES, AND NO T ONLY RS.50 LACS AS OFFERED BY THE APPELLANT, IS A REVENUE RECEIPT CHARGEABLE TO TAX. THEREFORE, THE ADDITION OF RS.95 LACS MADE BY THE A.O. UNDER THE HEAD 'BUSINESS AND PROFESSION' IS CONFIRMED. GROUND OF APPEAL NO.2 IS NOT ALLOWED. AS PER THE OBSERVATIONS, THE PAYMENT RECEIVED BY TH E ASSESSEE AROSE OUT OF CANCELLATION OF THE COMMERCIAL CONTRACT AND DID NOT AFFECT THE TRADING STRUCTURE OF ASSESSEES BUSINESS OR PROFESS ION. FURTHER, THE TERMINATION WAS PART AND PARCEL OF BUSINESS AND PRO FESSION AND THE TERMINATION DID NOT AMOUNT TO LOSS OF AN ENDURING A SSET CAUSING AN ABRUPT CLOSE DOWN OF THE BUSINESS OR PROFESSION, DI SLOCATING THE CAPITAL STRUCTURE OF BUSINESS AND PROFESSION EARNING APPARA TUS FOR THE ASSESSEE AND THEREFORE, THE ENTIRE RECEIPTS WERE REVENUE REC EIPTS. AGGRIEVED AS AFORESAID, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE, SHRI ASTAD RANDERIA DRAWING OUR ATTENTION TO THE RELEVANT AGREEMENTS A ND OTHER DOCUMENTS / CORRESPONDENCES, BY WAY OF ORAL AS WELL AS WRITTEN SUBMISSIONS, CONTENDED THAT THAT THE ADDITIONAL CON SIDERATION / ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 8 COMPENSATION RECEIVED BY THE ASSESSEE WAS CAPITAL I N NATURE SINCE IT DID NOT ARISE OUT OF EXERCISE OF THE PROFESSION BY THE ASSESSEE. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR], SHRI ASGHAR ZAIN SUBMITTED THAT THE RECEIPTS, BEING PART AND PARCEL OF THE CONTRACT UAL CONTRACT, WERE REVENUE IN NATURE AND THEREFORE, THE STAND OF FIRST APPELLATE AUTHORITY WAS FAIR AND JUSTIFIED. 4.1 WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS A ND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING THE CELEBRITY ENGAGEMENT CONTRACT DATED 11/02/2002 ENTERED INTO BETWEEN CCIL AND THE ASSESSEE. UPON PERUSAL, WE FIND THAT VIDE CLAUSES 2 & 3, OF THE AG REEMENT, THE ASSESSEE WAS TO RENDER SERVICES BY MAKING HERSELF AVAILABLE FOR 30 DAYS [15 DAYS IN EACH CALENDAR YEAR] OVER A PERIOD OF TWO YEARS B EGINNING FROM 01/02/2002 TO UNDERTAKE / FACILITATE PROMOTIONAL, A DVERTISING, ENDORSEMENT & MARKETING ACTIVITIES OF CCIL FOR VARIOUS PRODUCTS. THE MANNER OF RENDERING SERVICES, PROCEDURE THEREOF, SC HEDULES ETC. HAVE ALSO BEEN PROVIDED UNDER THE SAID CLAUSE-3. IN TERM S OF CLAUSE-7, THE ASSESSEE WAS ENTITLED FOR AGGREGATE PAYMENT OF RS.1 50 LACS PAYABLE IN THE FOLLOWING MANNER:- THE EVENTUALITY OF DEFAULTS AND CONSEQUENCES THEREO F HAS BEEN PROVIDED UNDER CLAUSE-9, WHICH READS AS FOLLOWS:- DEFAULT AND ITS CONSEQUENCES: NO. AMOUNT (RS.) SCHEDULE OF PAYMENT 1. RS.75 LACS WITHIN 10 DAYS OF SIGNING THE AGREEME NT 2. RS.25 LACS ON COMPLETION OF 8 DAYS OR 01/06/2002 3. RS.25 LACS ON COMPLETION OF 15 DAYS OR 30/12/200 2 4. RS.20 LACS ON COMPLETION OF 23 DAYS OR 01/06/200 3 5. RS.5 LACS ON COMPLETION OF 30 DAYS OR 30/12/2003 TOTAL RS.150 LACS ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 9 AT ANY TIME DURING THE TERM: A) SHOULD SUSHMITA FAIL TO FULFILL ANY OF HER OBL IGATIONS HEREUNDER FOR A PERIOD OF FIFTEEN (15) DAYS FROM THE DATE OF NOTICE FROM COCA -COLA TO FULFILL HER COMMITMENTS HEREUNDER, FAILS TO COMPLY WITH THE TERMS OF SUCH, COCA-COLA SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT FORTHWITH WITHOUT PAYMENT OF ANY FURTHER COMPENSATION AND SHALL BE ENTITLED TO PRO RATA REFUND OF ALL MON IES PAID TO SUSHMITA AS PER CLAUSE 9 (B). B) NOTWITHSTANDING ANYTHING HEREINCONTAINED SHOUL D SUSHMITA NEGLECT, DEFAULT, FAIL AND/OR BREACH, ANY OF HER OBLIGATIONS UNDER CLAUSES 3(C), 4, 6(B), 6(C), 6(D), 15 AND/OR ANY OF THE REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS AS SPECIFIED IN CLAUSE 5, COCA-COLA SHALL IN ADDITION TO IT S OTHER LEGAL AND EQUITABLE REMEDIES, HAVE THE RIGHT TO FORTHWITH TERMINATE THIS AGREEMEN T WITHOUT PAYMENT OF ANY FURTHER COMPENSATION. HOWEVER, IF AFTER RECEIVING COMMUNICATION FROM COCA -COLA AS STATED UNDER CLAUSE 3, E, SUSHMITA FAILS TO RENDER THE SERVICES AS PER CLAUSE 3, THEN COCA-COLA SHALL HAVE THE RIGHT TO SEEK PRO RATA REDUCTION OR REFUND , BASED ON THE NUMBER OF DAYS USED AS ON THE DATE OF TERMINATION. FOR PURPOSE OF COMPENSATION, EACH DAY IS BEING CALCULATED AT RS. 5,00,000( RUPEES FIVE LACS ONLY ) AND EACH MONTH IS CALCULATED AT RS.6,25,000 (RUPEES SIX LACS TWENTY FIVE THOUSAND O NLY) IF DURING THE TERM OF THIS AGREEMENT COCA-COLA BY I T OWN ACCORD FAILS TO UTILISE THE SERVICES OF SUSHMITA AS PER CLAUSE 3, SUSHMITA SHAL L HAVE THE RIGHT TO RECEIVE THE ENTIRE CONSIDERATION DUE AS PER CLAUSE 7. IN THE EVENT COCA-COLA BREACHES ANY OF THE TERMS AN D CONDITIONS OF THIS AGREEMENT, SUSHMITA SHALL HAVE THE RIGHT TO TERMINATE THIS AG REEMENT. IN THE EVENT OF TERMINATION, COCA-COLA SHALL NOT DE VELOP AND /OR UNDERTAKE ANY FRESH ADVERTISING ENDEAVOUR USING SUSHMITA. UPON PERUSAL, WE FIND THAT UPON FAILURE OF CCIL TO UTILIZE THE SERVICES OF SS AS PER CLAUSE-3, SS WOULD HAVE THE RIGHT TO RECEIVE THE ENTIRE CONSIDERATION DUE AS PER CLAUSE-7. FURTHER, IN CASE OF DEFAULT BY THE ASSESSEE, CCIL WAS ENTITLED TO SEEK REFUND OF MONEY ON PRO-RATA BASIS. 4.2 THEREAFTER, THE CORRESPONDENCES DATED 28/11/200 2, 02/12/2002, 11/12/2002, 24/12/2002 & 11/01/2003 EXCHANGED BETWE EN THE CCIL AND SS AS PLACED ON RECORD REVEAL THAT CERTAIN DISPUTE AR OSE BETWEEN THE TWO PARTIES AS TO AVAILABILITY OF SCHEDULES / DATES ETC. FINALLY, THE CONTRACT WAS TERMINATED BY CCIL VIDE LETTER DATED 27/02/2003 WHEREIN CCIL , INTER-ALIA, DEMANDED REFUND OF RS.145 LACS FROM SS CALCULATED IN THE FOLLOWING MANNER:- ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 10 NO. PARTICULARS AMT. (RS.) 1. AMOUNT PAID TO ASSESSEE AS ON NOVEMBER 30 1.00 C RORES 2. PAYMENT TO SS FOR SERVICES UTILIZED FOR 11 DAYS @RS.5 LAS PER DAY 0.55 CRORES 3. REFUND DUE 0.45 CRORES 4. BUSINESS LOSS 1.00 CRORES TOTAL REFUND DUE FROM SS 1.45 CRORES 4.3 IN RESPONSE TO AFORESAID TERMINATION, THE ASSES SEE, THROUGH ITS SOLICITORS FIRM M/S BACHUBHAI MUNIM & CO ., ISSUED A LEGAL NOTICE DATED 07/04/2004 TO DOUGHLAS N.DAFT, CHAIRMAN OF CCIL, USA & ALEX VON BEHR, PRESIDENT & CEO OF CCIL, INDIA WHEREIN THE ASSESSEE WHILE DISPUTING THE TERMINATION OF THE CONTRACT ALLEGED T HAT THE TERMINATION WAS MALA-FIDE AND DISHONEST AND WAS FOR THE COLLATERAL AND ILLEGA L PURPOSE TO PUNISH THE ASSESSEE SINCE SHE RIGHTLY RESISTED THE SEXUAL HARASSMENT BY AN EMPLOYEE OF CCIL IN THE COURSE OF DISCHARGE OF HIS DUTIES. IT WAS FURTHER STATED THAT THE ASSESSEE HELD CCIL AND ITS USA BASED PARENT COMPANY LIABLE FOR ALL THE CONSEQUENCES FLOWING FRO M THE ASSESSEE BEING MADE A VICTIM OF SEXUAL HARASSMENT BY AN EMPL OYEE OF CCIL AND FOR HAVING FAILED TO DISCHARGE ITS STATUTORY DUTY O F PROVIDING THE ASSESSEE WITH A SAFE WORK PLACE ENVIRONMENT PROTECTED FROM S EXUAL HARASSMENT. IN THE SAID NOTICE, THE ASSESSEE CLAIMED THE BALANC E SUM OF RS.50 LACS DUE TO HER UNDER THE CONTRACT AND SPECIFICALLY RESE RVED HER RIGHT TO CLAIM THE DAMAGES ARISING OUT OF HER BEING SEXUALLY HARAS SED FOR HAVING DISPARAGED HER WELL ESTABLISHED PROFESSIONAL REPUTA TION BY FALSE, MALICIOUS AND DEFAMATORY ALLEGATIONS OF GROSS NEGLI GENCE AND WILLFUL CONDUCT AND FOR THE REPUDIATORY BREACH OF CONTRACT BY CCIL. IN SUM AND SUBSTANCE, THE ASSESSEE ALLEGED THE TERMINATION WAS DONE FOR COLLATERAL AND ILLEGAL PURPOSE OF PUNISHING THE ASSESSEE FOR R ESISTING ATTEMPTS OF ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 11 SEXUAL HARASSMENT BY AN EMPLOYEE OF CCIL . FOR EASE OF REFERENCE, RELEVANT CLAUSES OF THE LEGAL NOTICE COULD BE EXTRA CTED HERE-IN-BELOW:- 4. WE STATE AT THE OUTSET, THAT THE PURPORTED TERMI NATION OF THE AGREEMENT (INCORRECTLY REFERRED TO IN THE LETTER AS THE AGREE MENT DATED FEBRUARY 1, 2002) HAS BEEN DONE FOR COLLATERAL AND ILLEGAL PURPOSE TO PUN ISH MS. SEN WHO RIGHTLY RESISTED ''SEXUAL HARASSMENT' BY ONE OF YOUR EMPLOYEES BASED IN MUMBAI OFFICE OF COCA COLA COMPANY, IN THE COURSE OF DISCHARGE OF HIS DUT IES AS AN EMPLOYEE OF COCA COLA COMPANY. AT NO TIME MS.SEN WAS IN BREACH OF TH E AGREEMENT, AS ALLEGED OR OTHERWISE, AND HAD PERFORMED AND WAS ALWAYS READY T O PERFORM HER PART OF THE AGREEMENT. 5. IN THE CIRCUMSTANCES MS. SEN TREATS THE PURPORTE D TERMINATION AS A BREACH OF THE AGREEMENT BY REPUDIATION BY COCA COLA COMPANY AND A CCEPTS THE BREACH AND HEREBY TERMINATES THE AGREEMENT AND HOLDS COCA-COLA COMPANY, WHICH EXPRESSION AS PER THE AGREEMENT INCLUDES THE PRINCIPAL COCA CO LA COMPANY, U.S.A. ('THE COMPANY'), LIABLE FOR ALL CONSEQUENCES THEREOF INCL UDING THE CONSEQUENCES FLOWING FROM HER BEING MADE A VICTIM OF SEXUAL HARASSMENT BY ONE OF THE EMPLOYEES OF THE COMPANY AND THE COMPANY HAVING FAILED TO DISCHA RGE ITS STATUTORY OBLIGATIONS OF PROVIDING MS. SEN WITH A SAFE WORK PLACE ENVIRONMEN T PROTECTED FROM SEXUAL HARRASMENT. SHE IS ALSO ENTITLED TO HE UNPAID REMU NERATION AND THE BALANCE OF THE EXPENSES SHE INCURRED ON ACCOUNT OF THE COMPANY AND WHICH REMAINS TO BE REIMBURSED TO HER FULLY AND DAMAGES FOR REPUDIATORY BREACH OF THE AGREEMENT BY THE COMPANY. 6. AS TO THE SERIOUS MATTERS CONCERNING 'SEXUAL HAR ASSMENT', BEFORE WE SET OUT THE DETAILS INCLUDING IDENTIFYING THE DELINQUENT EMPLOY EE WHO LACKED HONESTY AND INTEGRITY IN DEALING WITH OUR CLIENT, MS. SEN INSTR UCTS US TO OFFER YOU AN OPPORTUNITY TO DISCUSS THE MATTER WITH YOU MR. ALEX VON BEHR, CEO INDIA AND/ OR AN EXECUTIVE FROM YOUR HEAD OFFICE IN USA, ALONGWITH YOUR LEGAL ADVISER, IN A MEETING IN OUR OFFICES AT A MUTUAL CONVENIENT TIME DURING THE NEXT SEVEN DAYS. MAY WE REQUEST YOU TO REVERT. 7. THE ALLEGATIONS ON THE BASIS OF WHICH THE AGREEM ENT IS PURPORTED TO BE TERMINATED ARE FALSE AND WITHOUT ANY BASIS. THE ALL EGATIONS OF GROSS NEGLIGENCE AND WILLFUL CONDUCT ASCRIBED TO MS.SEN, ARE MALICIOUS, AND IRRESPONSIBLE AND ARE CLEARLY DEFAMATORY AND ARE MADE WITH THE INTENT TO WILLFULL Y CAUSE INJURY TO HER REPUTATION AND HER CALLING AS AN ARTIST KNOWING FULL WELL THAT THE ALLEGATIONS ARE FALSE. ***** 10. THE ABOVE MENTIONED FACTS ONLY GO TO ESTABLISH WHAT IS STATED AT THE OUTSET OF THIS LETTER THAT THE ONLY MOTIVE AND PURPOSE FOR TH E EXTREME STEP OF PURPORTED TERMINATION, WHICH OTHERWISE IS TOTALLY BASELESS AN D OF NO EFFECT, IS TO DRIVE MS. SEN TO GO TO THE DELINQUENT EMPLOYEE AND FALL A VICTIM TO HIS UNWELCOME SEXUALLY DETERMINED BEHAVIOR AND DEMANDS. 11. WHILST RESERVING HER RIGHT TO CLAIM DAMAGES INC LUDING THOSE ARISING OUT OF HER BEING 'SEXUALLY HARASSED', FOR HAVING DISPARAGED HE R WELL ESTABLISHED PROFESSIONAL REPUTATION BY FALSE, MALICIOUS AND DEFAMATORY ALLEG ATIONS OF GROSS NEGLIGENCE AND WILLFUL CONDUCT AND FOR THE REPUDIATORY BREACH OF C ONTRACT BY THE COMPANY WE ON BEHALF OF OUR CLIENT DEMAND OF COCA COLA COMPANY TH E PAYMENT OF THE BALANCE OF HER REMUNERATION UNDER THE AGREEMENT VIZ. RS.5,000 ,000/- ( FIVE MILLION) AND ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 12 RS.4,785/- TOWARDS BALANCE UNRECOUPED EXPENSES INCURRED BY HER FOR AND ON ACCOUNT OF THE COMPANY, NO LATER THAN 7 DAYS FROM THE RECEIPT OF THIS LETTER BY YOU. PLEASE NOTE THAT OUR CLIENT WILL BE ENTITLED TO INT EREST ON THE SAID AMOUNT AT THE RATE OF 18% PER ANNUM FROM THE DATE HEREOF UNTIL PAYMENT OR REALISATION. 4.4 THE AFORESAID NOTICE FINALLY CULMINATED INTO SETTLEMENT AGREEMENT DATED 18/09/2003 WHEREIN CCIL AGREED TO PAY SS A SUM OF RS.145 LACS TOWARDS FULL AND FINAL SETTLEMENT OF ALL HER CLAIMS AGAINST CCIL ARISING OUT OF OR IN RELATION TO THE SAID AGREEMENT AND SUBSEQU ENT TERMINATION THEREFORE. THE ASSESSEE WAS TO CONFIRM THAT THEREAF TER, SHE HAD NO CLAIM OF WHATSOEVER NATURE AGAINST CCIL . FURTHER, THE ASSESSEE WAS TO WITHDRAW ALL HER ALLEGATIONS THAT TERMINATION WAS W RONGFUL. IN TERMS OF CLAUSES 5 TO 7, CCIL VIEWING THE ALLEGATIONS SERIOUS IN NATURE, AGREED TO INQUIRE INTO THE ALLEGATIONS. THE INQUIRY WAS TO BE CONDUCTED BY HONBLE MR. JUSTICE S.P.BHARUCHA (RETD.), FORMER CHIEF JUST ICE OF INDIA . FINALLY, AS PER CLAUSE-14, THE ASSESSEE WAS TO CONFIRM THAT SHE HAD NO CLAIM OF WHATSOEVER NATURE AGAINST CCIL. FURTHER, THE ASSESSEE WAS TO CONFIRM THAT SHE HAD NOT INITIATED ANY PROCEEDINGS CIVIL OR CRIMINAL AGAINST CCIL OR ANY OF ITS EMPLOYEES. 4.5 PROCEEDING FURTHER, WE FIND THAT IT IS AN UNDIS PUTED FACT THAT PRIOR TO THE AFORESAID DISPUTE BETWEEN THE PARTIES, CCIL HAD ALREADY PAID A SUM OF RS.1 CRORES UNDER THE CONTRACT TO THE ASSESSEE W HICH IS EVIDENT FROM THE COPIES OF TDS CERTIFICATES DATED 15/03/2002 & 2 0/06/2002 ON RECORD AS ISSUED BY CCIL . THEREFORE, UNDISPUTEDLY, THE BALANCE PAYMENT DUE TO THE ASSESSEE UNDER THE CONTRACT WAS RS.50 LACS AT T HE TIME OF DISPUTE. 4.6 A CAREFUL CONSIDERATION OF ABOVE FACTUAL MATRIX AND CHAIN OF EVENTS AS NARRATED BY US REVEAL THAT THE FINAL SETTLEMENT AS ARRIVED BETWEEN THE PARTIES WAS NOT A SIMPLE SETTLEMENT OF COMMERCIAL C LAIMS OF THE ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 13 ASSESSEE ARISING OUT OF CONTRACTUAL TERMS. ONLY AN AMOUNT OF RS.50 LACS WAS DUE TO THE ASSESSEE AND AS PER THE TERMS OF THE CONTRACT, THE ASSESSEE HAD A RIGHT TO RECEIVE ONLY THAT MUCH OF A MOUNT IN CASE OF DEFAULT BY CCIL AND NOTHING MORE. AS AGAINST THIS, THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.145 LACS OUT OF WHICH RS.5 0 LACS HAS BEEN OFFERED TO TAX BY THE ASSESSEE. THE BALANCE AMOUNT OF RS.95 LACS IS STATED TO BE RECEIVED FOR LOSS OF REPUTATION ETC. U NDER THE CIRCUMSTANCES AS DISCUSSED BY US IN THE PRECEDING PARAGRAPHS AND THEREFORE, BEING CAPITAL IN NATURE, CLAIMED TO BE NOT TAXABLE. THE F ACTUAL MATRIX LEADS US TO BELIEVE SO IN VIEW OF THE FACT THAT THE CONTRACT DID NOT ENVISAGE ANY ADDITIONAL PAYMENT OVER AND ABOVE THE AMOUNT OF RS. 150 LACS TO THE ASSESSEE. THE PERUSAL OF DOCUMENTS LEADS US TO BELI EVE THAT THE SAID COMPENSATION DID NOT ACCRUE / ARISE OUT OF EXERCISE OF PROFESSION BY THE ASSESSEE AND COULD NOT BE CONSTRUED TO BE THE INCOM E OF THE ASSESSEE OR PROFITS AND GAINS OF PROFESSION WITHIN THE MEANI NG OF SECTION 2(24) AND SECTION 28 OF THE INCOME TAX ACT, 1961. THE COM PENSATION COULD NOT BE TERMED AS ANY BENEFIT, PERQUISITES ARISING T O THE ASSESSEE OUT OF EXERCISE OF PROFESSION. THE LD. FIRST APPELLATE AUT HORITY, IN OUR OPINION, FELL IN ERROR TO ADJUDICATE THE SAME ON THE THRESHO LD OF IMPACT OF THE COMPENSATION ON PROFIT MAKING APPARATUS WITHOUT UND ERSTATING THE TRUE NATURE OF THE RECEIPTS. THIS BEING SO, WE HAVE NO H ESITATION IN DELETING THE IMPUGNED ADDITION OF RS.95 LACS. WE ORDER SO. 4.7 THE LD. AR, DURING THE COURSE OF HEARING, HAD C ANVASSED THAT THE COMPENSATION RECEIVED FOR BREACH OF THE TERMS OF TH E CONTRACT HAS BEEN BROUGHT TO TAX BY WAY OF INSERTION OF NEW SUB-CLAUS E (E) TO SECTION 28(II) WITH EFFECT FROM 01/04/2018 AND THEREFORE, HAD NO A PPLICABILITY TO THE ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 14 PRESENT CASE. IN OUR OPINION, THE SAID SUBMISSIONS ARE IRRELEVANT IN VIEW OF THE FACT THAT THE ADDITIONAL COMPENSATION RECEIV ED BY THE ASSESSEE DID NOT ARISE FROM THE CONTRACTUAL TERMS AT ALL AND HEN CE, DO NOT REQUIRE ANY FURTHER ELABORATION AGAINST THE SAME. ASSESSEES APPEAL : ITA NO. 4351/MUM/2013 5. AGAINST THE AFORESAID ADDITION OF RS.95 LACS, TH E ASSESSEE HAS BEEN SADDLED WITH PENALTY OF RS.31.35 LACS U/S 271( 1)(C) VIDE ORDER DATED 15/03/2010. THE SAME, UPON CONFIRMATION BY FI RST APPELLATE AUTHORITY VIDE IMPUGNED ORDER DATED 27/03/2015, IS UNDER APPEAL BEFORE US. SINCE, WE HAVE ALLOWED ASSESSEES APPEAL AGAINS T QUANTUM ADDITION, THE CONSEQUENTIAL PENALTY DO NOT SURVIVE. EVEN OTHE RWISE, UPON CONSIDERATION OF FACTUAL MATRIX, WE ARE OF THE OPIN ION THAT THERE WAS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS ON THE PART OF THE ASSESSEE. IT WAS THE CASE WHERE THE ASSESSEE MADE CERTAIN CLAIM WHICH HAS NOT BEEN ACCEPTED BY THE REVENUE. VIEWED FROM ANY ANGLE, THE IMPUGNED PENALTY COULD NOT SURVIVE. THE APPEAL STAND ALLOWED. CONCLUSION 6. BOTH THE APPEALS STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH NOVEMBER, 2018. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 14/11/2018 SR.PS:- JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. #% / THE APPELLANT 2. &'#% / THE RESPONDENT 3. ( ) / THE CIT(A) ITA.NO.4351/MUM/2015 SUSMITA SEN ASSESSMENT YEAR-2004-05 15 4. / CIT CONCERNED 5. , -&. , . , / DR, ITAT, MUMBAI 6. - /01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.