ACIT - 14(2), MUMBAI V. HITEN P. DALAL, MUMBAI

ITA 4731/MUM/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3480 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 11-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BHAVIN PAREKH
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H, BENC H MUMBAI BEFORE SHRI B.R.BASKARAN, AM & SHRI PAWAN SIN GH, JM ITA NO.4731/MUM/2 014 (ASSESSMENT YEAR : 2008-09) ACIT 14(2), EARNEST HOUSE, ROOM NO. 302, 3 RD FLOOR, NARIMAN POINT, MUMBAI-400021. VS. SHRI HITEN P. DALAL, PLOT NO.77, ABCD, GOVT. INDL. ESTATE, CHARKOP, KANDIVALI(W), MUMBAI-400067 PAN/G IR NO.: AABPD5221H ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY : SHRI ABHISHEK SHARMA (DR) ASSESSEE BY : SHRI BHAVIN PAREKH DATE OF HEARING : 20/01/2016 DATE OF PRONOUNCEMENT: 22/01/2016 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AG AINST THE ORDER DATED 17.04.2014 PASSED BY CIT(A)-25, MUMBAI WHEREIN THE PENALTY ORDER PASSED U/S 271(1)(C) OF THE ACT WAS DELETED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED HIS RETURN OF INCOME OF RS. 32,05,300/- ON 30.09.2008 FOR AY-2008-09. THE RETUR N WAS SELECTED FOR SCRUTINY AND IN THE ASSESSMENT ORDER THE AO MADE AN ADDITION HOLDING THAT PROFIT EARNED/RECEIVED FROM SALE OF SHARE UNDER PMS SCHEM E IS BUSINESS PROFIT AND CANNOT BE TERMED AS CAPITAL GAIN. ACCORDINGLY A P ROFIT OF RS. 1,87,15,072/- WAS TREATED AS PROFIT & GAIN OF BUSINESS OR PROFESSION BY AO AND HE ALSO INITIATED PENALTY PROCEEDING U/S. 271(1)(C) OF THE ACT. THE N OTICE OF PENALTY PROCEEDING WAS SERVED VIDE NOTICE DATED 09.12.2010. 3. THE PENALTY ORDER DATED 22.03.2013 REVEALED THAT NO RESPONSE WAS FILED BY THE ASSESSEE AND THE APPEAL FILED BY THE ASSESSEE AGAIN ST THE ORDER OF QUANTUM WAS DISMISSED BY THE CIT(A) ON 25.02.2010 AND THUS PENA LTY ORDER LEVYING A PENALTY OF RS. 61,21,359/- WAS LEVIED BY THE AO. 4. AGAINST THE PENALTY ORDER DATED 22.03.2013 THE ASSE SSEE FILED AN APPEAL BEFORE THE CIT(A) WHEREIN CIT(A) DELETED THE WHOLE OF THE PENALTY IN ITS ORDER DATED 17.04.2014 AGAINST WHICH THE PRESENT APPEAL IS FILE D BEFORE US BY THE REVENUE CHALLENGING THE VALIDITY OF ORDER. ITA NO. 4731/M/14 SHRI HITEN P. DALAL 2 5. AT THE OPENING OF THE SUBMISSION, AR OF THE ASSESSE E HAS SUBMITTED THAT AGAINST THE ORDER PASSED BY LD. CIT(A) IN THE QUANTUM OF PR OCEEDINGS THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL WHICH WAS REGISTERED AS ITA NO. 1068/MUM/2012. HE FURTHER SUBMITTED THAT THE TRIBUNAL HAS ALLOWED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE GAIN ARISING ON SALE OF SHARE IS T O BE ASSESSED AS CAPITAL GAIN. ACCORDINGLY HE SUBMITTED THAT THE IMPUGNED PENALTY ORDER WILL NOT SURVIVE AGAINST THE ASSESSEE. 6. WE HAVE SEEN THE ORDER DATED 30.10.2015 PASSED BY C O-ORDINATE BENCH OF THIS TRIBUNAL IN ITA NO. 1068/MUM/2012 WHEREIN THE GAIN ARISING ON SALE OF SHARE WAS DIRECTED TO BE TREATED AS CAPITAL GAIN AND NOT AS A BUSINESS INCOME. HENCE THE GROUND ON WHICH THE PENALTY ORDER WAS PASSED NO LON GER SURVIVE AFTER ORDER OF THE TRIBUNAL PASSED IN QUANTUM ASSESSMENT PROCEEDIN GS. HENCE ON THESE REASON THE DECISION OF LD. CIT(A) NEEDS TO BE UPHELD. 7. HENCE, WE DO NOT FIND ANY MERIT IN THE PRESENT APPE AL AND THE SAME IS DISMISSED AND THE ORDER PASSED BY CIT(A) DATED 17.04.2014 IS UPHELD. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 /01/2016. SD/- SD/- (B.R.BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED : 22/01/2016 SK, PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/