ITO 4(2)(4), MUMBAI V. SONPANKHI SHARES & SECURITIES P.LTD, MUMBAI

ITA 5229/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2148 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VISHWAS V MEHENDALE
• Keywords: Business income; Question of law; Speculation loss
• Section: 143(3)

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 5229 /MUM/2015 ( / ASSESSMENT YEAR : 2009-10) INCOME TAX OFFICER 4(2)(4), AAYAKAR BHAVAN, ROOM NO. 644, 6 TH FLOOR, M.K. ROAD, MUMBAI -400020. / V. M/S SONPANKHI SHARES & SECURITIES PVT. LTD., 12, REYFREDA, SIR M.V. MARG, CHAKALA, ANDHERI (E), MUMBAI 400093. ./ PAN : AAFCS0822E ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY SHRI VISHWAS V. MEHENDALE REVENUE BY : SHRI DINKLE HARIYA / DATE OF HEARING : 04-10-2016 / DATE OF PRONOUNCEMENT : 09-11-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE REVENUE, BEING ITA NO. 5 229/MUM/2015, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 17 TH AUGUST, 2015 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 9, MU MBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2009-10, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE PENALTY ORDER DATED 20 TH MARCH, 2014 PASSED BY THE LEARNED ASSESSING OFFICER (HEREI NAFTER CALLED THE AO) U/S 271(1)(C) OF THE INCOME-TAX ACT,1961 (HEREINAFTER C ALLED THE ACT). ITA 5229/MUM/2015 2 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN T HE MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED CIT(A) ERRED IN DELETING THE PENALTY OF RS. 11,31,8 65/- LEVIED U/S 271(1)(C) OF THE ACT FOR THE SET OFF OF SPECULATION LO SS AGAINST THE BUSINESS INCOME AS CLAIMED BY THE ASSESSEE. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE COMPANY SHOWED BUSINESS INCOME AT RS. 11,26,763/- VIDE REVISED COMPUTATION OF INCOME FIL ED DURING ASSESSMENT PROCEEDINGS, WHICH WAS SHOWN AFTER SEGREGATING THE SPECULATION LOSS OF RS. 37,31,368/- FROM THE COMPUTATION OF TOTAL INCOME. IN THE COMPUTATION OF INCOME FILED WITH THE ORIGINAL RETURN OF INCOME FIL ED WITH THE REVENUE, THE ASSESSEE HAD NOT SHOWN THE SPECULATION LOSS OF RS. 37,31,368/-. THUS, THE A.O. TREATED THE LOSS OF RS. 37,31,368/- AS SPECULA TION LOSS UNDER EXPLANATION TO SECTION 73 OF THE ACT AND THE SAME W AS ALLOWED TO BE CARRIED FORWARD AS SPECULATION LOSS. IT WAS OBSERVED DURING THE ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAD WRONGLY SET OFF T HE SPECULATION LOSS AGAINST THE BUSINESS INCOME. ACCORDINGLY PENALTY PROCEEDIN GS WERE INITIATED U/S 271(1)(C) OF THE ACT BY ISSUING NOTICE U/S 274 OF T HE ACT AS IN THE ORIGINAL RETURN OF INCOME FILED ON 26 TH SEPTEMBER, 2009 WHEREBY THE INCOME DECLARED WAS NIL AND CURRENT YEAR LOSS WAS WORKED OUT AT RS. 26,04,604/-. THE LD. CIT(A) IN THE QUANTUM ADDITION, CONFIRMED THE ASSES SMENT ORDER OF THE A.O. . DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSES SEE SUBMITTED THAT SECTION 271(1)(C) OF THE ACT IS APPLICABLE IF THE ASSESSEE HAS CONCEALED PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF S UCH INCOME. THE A.O. LEVIED THE PENALTY AS THERE ARE NO SPECULATION PROF ITS FOR SETTING OFF AGAINST ITA 5229/MUM/2015 3 SPECULATION LOSS AND PROVISIONS OF SECTION 73(1) OF THE ACT ARE VERY CLEAR IN THIS CASE WHEREIN THE SPECULATION LOSS COMPUTED IN RESPECT OF A SPECULATION BUSINESS CARRIED ON BY THE ASSESSEE SHALL NOT BE SE T OFF EXCEPT AGAINST PROFITS AND GAINS OF ANOTHER SPECULATION BUSINESS. THE A.O . HELD THAT THE ASSESSEE HAS KNOWINGLY AND DELIBERATELY CONCEALED HIS INCOME TO THE TUNE OF RS. 37,72,883/- AS THE ASSESSEE IS GUIDED BY QUALIFIED PROFESSIONAL CA AND THE ASSESSEE ACCOUNTS ARE AUDITED AND THE ASSESSEE HAS FAILED TO PROVE THAT HE HAD NOT DELIBERATELY AND NOT KNOWINGLY CONCEALED HI S INCOME. IT WAS HELD BY THE AO THAT IT IS ESTABLISHED BEYOND DOUBT THAT THE ASSESSEE HAS DELIBERATELY ACTED IN CONSCIOUS DISREGARD OF LAW IN ORDER TO EV ADE THE TAXES. THE A.O. ACCORDINGLY LEVIED @ 100% PENALTY ON THE TAX SOUGHT TO BE EVADED WHEREBY PENALTY OF RS. 11,31,865/- WAS LEVIED BY THE AO VI DE PENALTY ORDER DATED 20- 03-2014 PASSED BY THE AO U/S 271(1)(C) OF THE ACT , WHICH WAS LATER DELETED BY THE LD. CIT(A) WHEREIN APPEAL OF THE ASSESSEE WA S ALLOWED BY LEARNED CIT(A) VIDE APPELLATE ORDERS DATED 19.05.2014 PASSED BY TH E LEARNED CIT(A). 4. AGGRIEVED BY THE APPELLATE ORDERS DATED 19.05.20 14 PASSED BY THE LEARNED CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNA L WHEREBY THE REVENUE CHALLENGED THE DELETION OF THE PENALTY BY THE LEARN ED CIT(A) AGAINST THE ASSESSEE OF RS.11,31,865/- , WHICH WAS ORIGINALLY L EVIED BY THE AO U/S 271(1)(C) OF THE ACT. 5. AT THE VERY OUTSET, THE LEARNED DR AND LD. COUNS EL FOR THE ASSESSEE BOTH AGREED THAT THE QUANTUM ADDITIONS ON THIS ISSUE HAS BEEN DELETED BY THE TRIBUNAL VIDE ITS ORDER IN ITA NO. 7068/MUM/2012 FO R THE ASSESSMENT YEAR 2009-10 VIDE ORDERS DATED 3 RD AUGUST, 2016 IN ASSESSEES OWN CASE. THUS, IT WAS THE CONTENTION OF THE LD. COUNSEL FOR THE ASSES SEE THAT IN VIEW OF THE DELETION OF THE ADDITION IN QUANTUM PROCEEDINGS IN ASSESSEES OWN CASE, PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE SAME ISSUE WILL NOT SURVIVE. THE ORDER OF THE TRIBUNAL IN ITA NO 7068/MUM/2012 IS PL ACED IN THE FILE ITA 5229/MUM/2015 4 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE TRIBUNAL ORDER IN ITA NO. 7068/MUM/2012 VIDE ORDERS DATED 03-08-2016 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009-10. WE HAVE OBSERVED THAT THE TRIBUNAL IN ITS ORDER IN ITA NO. 7068/MUM/2012 FOR THE ASSESSMENT YEAR 2009-10 VIDE ITS ORDERS DATED 3 RD AUGUST, 2016, IN WHICH ONE OF US WAS ALSO PARTY, HA S DELETED THE QUANTUM ADDITION AND HENCE CONSEQUENTIALLY THE PENALTY LEVI ED U/S 271(1)(C) OF THE ACT ON THE SAME ISSUE WILL NOT SURVIVE. THE OBSERVATION OF THE TRIBUNAL IN THE AFORE-STATED ORDERS ARE AS UNDER:- 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PE RUSED THE MATERIAL ON RECORD INCLUDING THE CASE LAWS RELIED U PON BY THE RIVAL PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE C OMPANY IS ENGAGED IN THE BUSINESS OF DEALING IN SHARES WHEREB Y THE ASSESSEE COMPANY IS BUYING SHARES ON ITS OWN ACCOUN T, AND ALSO ON ACCOUNT OF CLIENTS WHEREBY THE ASSESSEE COMPANY IS GETTING INCOME FROM BROKERAGE AND COMMISSION. THE ASSESSEE COMPANYS MAIN BUSINESS IS DEALING IN SHARES. WIT H RESPECT TO DELIVERY BASED TRANSACTION OF SALE AND PURCHASE OF SHARES ON ITS OWN ACCOUNT, THE ASSESSEE COMPANY HAS INCURRED LOSS OF RS.37,31,368/- WHICH WAS CLAIMED AS SPECULATIVE LOS S IN THE REVISED COMPUTATION OF INCOME FILED WITH THE AO DUR ING ASSESSMENT PROCEEDINGS U/S 143(2) READ WITH SECTION 143(3) OF THE ACT AS THE SAME WAS HIT BY EXPLANATION TO SECTI ON 73 OF THE ACT. THE AO TREATED THE SAID LOSS AS SPECULATION LO SS AND ALLOWED IT TO BE CARRIED FORWARD . THE ASSESSEE COMPANY DI D NOT CONTESTED THE SAME BEFORE THE LEARNED CIT(A) . THE ASSESSEE COMPANY RELIED UPON DECISION OF CIT V. HSBC SECURIT IES AND CAPITAL MARKETS PRIVATE LIMITED(SUPRA) . WE HAVE OB SERVED THAT THE ASSESSEE COMPANY CASE IS SQUARELY COVERED BY TH IS DECISION OF HONBLE BOMBAY HIGH COURT. THE ASSSESSEE COMPANY HA S INCOME FROM BUSINESS OF RS.11,26,763/- FROM NON-SPECULATIO N BUSINESS , WHILE INCOME FROM TRADING FROM SHARES ON ITS OWN AC COUNT IS LOSS OF RS. 37,31,368/- AND HENCE ON NET BASIS THERE IS A LOSS UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION , WHI LE THERE IS DIVIDEND INCOME OF RS.2,81,545/- EARNED BY THE ASSE SSEE ITA 5229/MUM/2015 5 COMPANY UNDER THE HEAD INCOME FROM OTHER SOURCES WHICH IS CLAIMED EXEMPT AND HENCE THE ASSESSEE COMPANY WILL FALL WITHIN THE PURVIEW OF EXCEPTION CARVED OUT IN THE EXPLANAT ION TO SECTION 73 OF THE ACT AND CONSEQUENTLY THE ASSESSEE COMPANY WOULD NOT BE DEEMED TO BE CARRYING ON SPECULATION BUSINESS FO R THE PURPOSE OF SECTION 73(1) OF THE ACT . THE RELEVANT EXTRACTS OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. HSBC SECURITIES AND CAPITAL MARKET INDIA PRIVATE LIMITED , (2012) 208 TAXMAN 439(BOM. HC.) IS REPRODUCED HEREUNDER: 8. IN THE PRESENT CASE, SECTION 73 WOULD NOT APPLY IN VIEW OF THE FACT THAT THE EXPLANATION THERETO, DOES NOT OPERATE IN RESPECT OF A COMPANY WHOSE GROSS TOTAL INCOME CONSISTS MAINLY OF INCOME WHICH IS CHARGEABLE UNDER THE HEADS OF 'INTEREST ON SECURITIES', 'INCOME FROM HOUSING PROPERTY', 'CAPITAL GAINS' AND 'INCOME FROM OTHER SOURCES'. WE HAVE SET OUT THE RELEVANT PART O F THE ASSESSMENT ORDER WHICH INDICATES THAT IN THE RELEVANT YEAR, TH E INCOME FROM OTHER SOURCES WAS THE ONLY CHARGEABLE INCOME, AS TH E RESPONDENT HAD SUFFERED A BUSINESS LOSS OTHERWISE. IN THAT VIEW OF THE MATTER, THE JUDGMENT OF THE DIV ISION BENCH OF THIS COURT IN THE CASE OF DARSHAN SECURITIES (P.) L TD. (SUPRA) SUPPORTS THE RESPONDENT'S CASE. IN THAT CASE, DURIN G THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE HAD A LOSS OF ABOUT R S. 2.33 CRORES IN THE SHARE TRADING AND HAD DIVIDEND INCOME OF ABO UT RS. 4.80 LACS. THE DIVISION BENCH HELD IN PARAGRAPHS 6, 7, 8 AND 9 AS UNDER :- '6. THE EXPLANATION TO SECTION 73 INTRODUCES A DEEM ING FICTION. THE DEEMING FICTION STIPULATES THAT WHERE ANY PART OF T HE BUSINESS OF A COMPANY CONSISTS IN THE PURCHASE AND SALE OF SHARES OF OTHER COMPANIES, SUCH COMPANY SHALL, FOR THE PURPOSES OF THE SECTION BE DEEMED TO BE CARRYING ON A SPECULATION BUSINESS TO THE EXTENT TO WHICH THE BUSINESS CONSISTS OF THE PURCHASE AND SAL ES OF SUCH SHARES. THE DEEMING FICTION APPLIES ONLY TO A COMPA NY AND THE PROVISION MAKES IT CLEAR THAT THE DEEMING FIXATION (SIC) EXTENDS ONLY FOR THE PURPOSES OF THE SECTION. THE BRACKETED PORT ION OF THE EXPLANATION, HOWEVER CARVES OUT AN EXCEPTION. THE E XCEPTION IS THAT THE PROVISION OF THE EXPLANATION SHALL NOT APPLY TO A COMPANY WHOSE GROSS TOTAL INCOME CONSISTS MAINLY OF INCOME WHICH IS CHARGEABLE UNDER THE HEADS 'INTEREST ON SECURITIES' , 'INCOME FROM HOUSE PROPERTY', 'CAPITAL GAINS' AND 'INCOME FROM O THER SOURCES' OR A COMPANY WHOSE PRINCIPAL BUSINESS IS OF BANKING OR THE GRANTING OF LOANS AND ADVANCES. ITA 5229/MUM/2015 6 7. THE SUBMISSION WHICH HAS BEEN URGED ON BEHALF OF THE REVENUE IS THAT IN COMPUTING THE GROSS TOTAL INCOME FOR THE PURPOSE OF THE EXPLANATION TO SECTION 73, INCOME UNDER THE HEADS O F PROFITS AND GAINS OF BUSINESS OR PROFESSION MUST BE IGNORED. AL TERNATIVELY, IT HAS BEEN URGED THAT WHERE THE INCOME FROM BUSINESS INCLUDES A LOSS IN THE TRADING OF SHARES, SUCH A LOSS SHOULD N OT BE ALLOWED TO BE SET OFF AGAINST THE INCOME FROM ANY OTHER SOURCE UNDER THE HEAD OF PROFITS AND GAINS OF BUSINESS OR PROFESSION. 8. IN OUR VIEW, THE SUBMISSION WHICH HAS BEEN URGED ON BEHALF OF THE REVENUE CANNOT BE ACCEPTED. LEAVING ASIDE FOR A MOMENT, THE EXCEPTION, WHICH IS CARVED OUT BY THE EXPLANATION T O SECTION 73, THE EXPLANATION CREATES A DEEMING FICTION BY WHICH A CO MPANY IS DEEMED TO BE CARRYING ON A SPECULATION BUSINESS WHE RE ANY PART OF ITS BUSINESS CONSISTS IN THE PURCHASE AND SALE OF S HARES OF OTHER COMPANIES. NOW, THE EXCEPTION WHICH IS CARVED OUT A PPLIES TO A SITUATION WHERE THE GROSS TOTAL INCOME OF A COMPANY CONSISTS MAINLY OF INCOME WHICH IS CHARGEABLE UNDER THE HEAD S 'INTEREST ON SECURITIES', 'INCOME FROM HOUSE PROPERTY', 'CAPITAL GAINS' AND 'INCOME FROM OTHER SOURCES'. NOW, ORDINARILY INCOME WHICH ARISES FROM ONE SOURCE WHICH FALLS UNDER THE HEAD OF PROFI TS AND GAINS OF BUSINESS OR PROFESSION CAN BE SET OFF AGAINST THE L OSS WHICH ARISES FROM ANOTHER SOURCE UNDER THE SAME HEAD. SUB-SECTIO N (1) OF SECTION 73 HOWEVER SETS UP A BAR TO THE SETTING OFF OF A LOSS WHICH ARISES IN RESPECT OF SPECULATION BUSINESS AGAINST T HE PROFITS AND GAINS OF ANY OTHER BUSINESS. CONSEQUENTLY, A LOSS W HICH HAS ARISEN ON ACCOUNT OF SPECULATION BUSINESS CAN BE SE T OFF ONLY AGAINST THE PROFITS AND GAINS OF ANOTHER SPECULATIO N BUSINESS. HOWEVER, FOR SUB-SECTION (1) OF SECTION 73 TO APPLY THE LOSS MUST ARISE IN RELATION TO A SPECULATION BUSINESS. THE EX PLANATION PROVIDES A DEEMING DEFINITION OF WHEN A COMPANY IS DEEMED TO BE CARRYING ON A SPECULATION BUSINESS. IF, THE SUBMISS ION OF THE REVENUE IS ACCEPTED, IT WOULD LEAD TO AN INCONGRUOU S SITUATION, WHERE IN DETERMINING AS TO WHETHER A COMPANY IS CAR RYING ON A SPECULATION BUSINESS WITHIN THE MEANING OF THE EXPL ANATION, SUB- SECTION (1) OF SECTION 73 IS APPLIED IN THE FIRST I NSTANCE. THIS WOULD IN OUR VIEW NOT BE PERMISSIBLE AS A MATTER OF STATU TORY INTERPRETATION, BECAUSE THE EXPLANATION IS DESIGNED TO DEFINE A SITUATION WHERE A COMPANY IS DEEMED TO CARRY ON SPE CULATION BUSINESS. IT IS ONLY THEREAFTER THAT SUB-SECTION (1 ) OF SECTION 73 CAN APPLY. APPLYING THE PROVISIONS OF SECTION 73(1) TO DETERMINE WHETHER A COMPANY IS CARRYING ON SPECULATION BUSINE SS WOULD REVERSE THE ORDER OF APPLICATION. THAT WOULD BE IMP ERMISSIBLE, NOR, IS IT CONTEMPLATED BY PARLIAMENT. FOR, THE AMBIT OF SUB-SECTION (1) OF SECTION 73 IS ONLY TO PROHIBIT THE SETTING OFF O F A LOSS WHICH HAS ITA 5229/MUM/2015 7 RESULTED FROM A SPECULATION BUSINESS, SAVE AND ACCE PT AGAINST THE PROFITS AND GAINS OF ANOTHER SPECULATION BUSINESS. IN ORDER TO DETERMINE WHETHER THE EXCEPTION THAT IS CARVED OUT BY THE EXPLANATION APPLIES, THE LEGISLATURE HAS FIRST MAND ATED A COMPUTATION OF THE GROSS TOTAL INCOME OF THE COMPAN Y. THE WORDS 'CONSISTS MAINLY' ARE INDICATIVE OF THE FACT THAT T HE LEGISLATURE HAD IN ITS CONTEMPLATION THAT THE GROSS TOTAL INCOME CO NSISTS PREDOMINANTLY OF INCOME FROM THE FOUR HEADS THAT AR E REFERRED TO THEREIN. OBVIOUSLY, IN COMPUTING THE GROSS TOTAL IN COME THE NORMAL PROVISIONS OF THE ACT MUST BE APPLIED AND IT IS ONL Y THEREAFTER, THAT IT HAS TO BE DETERMINED AS TO WHETHER THE GROSS TOT AL INCOME SO COMPUTED CONSISTS MAINLY OF INCOME WHICH IS CHARGEA BLE UNDER THE HEADS REFERRED TO IN THE EXPLANATION. 9. CONSEQUENTLY, IN THE PRESENT CASE THE GROSS TOTA L INCOME OF THE ASSESSEE WAS REQUIRED TO BE COMPUTED INTER ALIA BY COMPUTING THE INCOME UNDER THE HEAD OF PROFITS AND GAINS OF BUSIN ESS OR PROFESSION AS WELL. BOTH THE INCOME FROM SERVICE CH ARGES IN THE AMOUNT OF RS. 2.25 CRORES AND THE LOSS IN SHARE TRA DING OF RS. 2.23 CRORES, WOULD HAVE TO BE TAKEN INTO ACCOUNT IN COMP UTING THE INCOME UNDER THAT HEAD, BOTH BEING SOURCES UNDER TH E SAME HEAD. THE ASSESSEE HAD A DIVIDEND INCOME OF RS. 4.7 LACS (INCOME FROM OTHER SOURCES). THE TRIBUNAL WAS JUSTIFIED, IN COMI NG TO THE CONCLUSION THAT THE ASSESSEE FELL WITHIN THE PURVIE W OF THE EXCEPTION CARVED OUT IN THE EXPLANATION TO SECTION 73 AND THAT CONSEQUENTLY THE ASSESSEE WOULD NOT BE DEEMED TO BE CARRYING ON A SPECULATION BUSINESS FOR THE PURPOSE OF SEC. 73(1 ).' 9. IN THE CIRCUMSTANCES, THE APPEAL IS DISMISSED BUT WITH NO ORDER AS TO COSTS. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE H ONBLE JURISDICTIONAL HIGH COURT, WE HOLD THAT THE LOSS OF RS.37,31,368/- INCURRED BY THE ASSESSEE COMPANY ON SHARE TRADING CARRIED ON BY IT ON ITS OWN BEHALF SHALL NOT BE HIT BY THE DEEMING FICTION OF EXPLANAT ION TO SECTION 73 OF THE ACT AND SHALL BE TREATED AS NORMAL BUSINESS LOS S TO BE SET ASIDE AGAINST THE OTHER NON-SPECULATIVE BUSINESS INCOME A ND OTHER INCOME AS PER PROVISIONS OF THE ACT. THIS DISPOSES OF THE GROUND NO 1 RAISED BY THE ASSESEE COMPANY AS WELL ADDITIONAL GROUND RAISED BY THE ASSESSEE COMPANY. WE WOULD LIKE TO CLARIFY THAT IN VIEW OF O UR ABOVE DECISION, WE HAVE REFRAINED FROM ANSWERING THE QUESTION OF LAW R AISED BY THE ASSESSEE WITH RESPECT TO RETROSPECTIVITY OF AMENDM ENT BROUGHT IN BY SECTION 73 OF THE ACT WHICH WAS AMENDED BY FINANCE ACT,2014 W.E.F 01- 04-2015 AND HAS LEFT THE SAID QUESTION OPEN. WE ORD ER ACCORDINGLY. ITA 5229/MUM/2015 8 RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 7068/MUM/2012 VIDE ORDERS DATED 03-08-2016 WHEREIN QUANTUM ADDITIONS WERE DELETED BY THE TRIBUNAL ON THIS ISSU E IN ASSESSEES OWN CASE, WE ARE OF THE CONSIDERED VIEW THAT PENALTY LEVIED B Y THE REVENUE U/S 271(1)(C) OF THE ACT ON THIS ISSUE WILL NOT SURVIVE IN VIEW O F THE AFORE-STATED TRIBUNAL DECISION DELETING THE QUANTUM ADDITION. WE, THEREF ORE, CONFIRM DELETION OF THE PENALTY OF RS.11,31,865/- U/S 271(1)(C) OF THE ACT AS WAS DECIDED BY THE LD. CIT(A).WE ORDER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I N ITA NO. 5229/MUM/2015 FOR THE ASSESSMENT YEAR 2009-10 IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH NOVEMBER, 2016. # $% &' 09-11-2016 ( ) SD/- SD/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 09-11-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS \ !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI E BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI