Ashok Juneja, New Delhi V. ACIT, New Delhi

ITA 5315/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7837 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 25-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: NITIN MITTAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A .NO.-5315/DE L/2013 (ASSESSMENT YEAR-2008-09) ASHOK JUNEJA,, F-7/6, GROUND FLOOR, VASANT VIHAR, NEW DELHI-110057. PAN-AAOPJ1607J (APPELLANT) VS ACIT, CIRCLE-43(1), D-BLOCK, CIVIC CENTRE, NEW DELHI (RESPONDENT) A SSESSEE BY SH. NITIN MITTAL, CA R EVENUE BY SH. K.K.JAISWAL, DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 06.08.2013 OF CIT(A)-XXX, NEW DE LHI PERTAINING TO 2008-09 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF THE ASSESSING OFFICER U/S 271(1) (C) OF THE INCOME TAX ACT IS BAD IN LAW AND ON THE FACTS AND CIRCUMSTANCE S OF THE CASE. 2. THAT THE ASSESSING OFFICER HAS ERRED IN INITIATING AND LEVYING THE PENALTY OF RS.1,65,561/- ON INACCURATE PARTICULARS ABOUT SHORT TERM LOSS OF RS.12,07,233/- UNDER SECTION 271(1)(C). 3. THAT CIT(APPEAL) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT CONSIDERING THE MERITS AND FACTS OF THE CAS E. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASS ESSEE RETURNED AN INCOME OF RS.1,24,28,690/- BY FILING ITS RETURN ON 31.07.2008 . THE SAID RETURN WAS PROCESSED U/S 143(1). SUBSEQUENTLY IT WAS SELECTED FOR SCRUTINY ASSESSMENT BASED ON AIR INFORMATION RECEIVED UNDER CASS. IN THE COU RSE OF THE ASSESSMENT PROCEEDINGS, THE AO CONSIDERING THE CLAIM OF SHORT- TERM CAPITAL LOSS OF DATE OF HEARING 21.03.2016 DATE OF PRONOUNCEMENT 03.05.2016 I.T.A .NO.-5315/DEL/2013 PAGE 2 OF 3 RS.12,07,233/- ON SALE OF UNITS OF MUTUAL FUND, REQ UIRED THE ASSESSEE TO FILE COMPUTATION OF SHORT TERM CAPITAL LOSS FROM ITS THR EE MUTUAL FUND MANAGERS NAMELY M/S DEUTHSE BANK, M/S HSBC BANK AND M/S STAN DARD CHARTERED BANK. IN RESPONSE THERETO, THE ASSESSEE FILED A REVISED C OMPUTATION SHEET DISCLOSING SHORT TERM CAPITAL GAIN OF RS.2,54,034/- AGAINST TH E SHORT TERM CAPITAL LOSS OF RS.12,07,233/- CLAIMED. ACCORDINGLY AN ADDITION OF RS.2,54,034/- WAS MADE. PURSUANT TO THIS, THE PENALTY PROCEEDINGS WERE INIT IATED. IN RESPONSE TO THE SHOW- CAUSE NOTICE IN THE PENALTY PROCEEDINGS, IT WAS SUB MITTED THAT INADVERTENTLY THERE WAS A MISTAKE IN THE COMPUTATION OF THE SHORT TERM CAPITAL GAIN DUE TO TYPING ERROR. IT WAS SUBMITTED THAT DUE TAX THEREON STOOD PAID AND ALL THE RELEVANT INFORMATION WAS ALREADY AVAILABLE ON RECORD. IT WA S PLEADED THAT IT WAS A CASE OF A TYPE ERROR AND NOT OF FILING INACCURATE PARTICULA RS OR A CASE OF CONCEALMENT. THE SUBMISSION THAT IT WAS A CASE OF WRONG CALCULATION AND TYPOGRAPHICAL ERROR WHICH IS DISTINGUISHABLE FROM CONCEALMENT WAS ALSO MADE. HOWEVER, THE EXPLANATION OFFERED WAS NOT ACCEPTED AND PENALTY OF RS.1,65,56 1/- WAS IMPOSED. IN APPEAL, IT WAS CONFIRMED BY THE CIT(A). 3. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFOR E US. BOTH THE PARTIES HAVE BEEN HEARD. THE LD.AR RELIES UPON THE SUBMISSIONS MADE BEFORE THE FIRST APPELLATE AUTHORITY. THE LD. SR. DR RELYING UPON TH E IMPUGNED ORDER SUBMITTED THAT A MISTAKE HAD BEEN DETECTED AND HAD IT NOT BEE N SO DETECTED THE ASSESSEE WOULD HAVE GONE SCOT-FREE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. CONSIDERING THE JUDICIAL PRECEDENT AS LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF CIT VS RELIANCE PETRO PRODUCTS PVT.L TD. 322 ITR 158 (SC) AND PRICE WATER HOUSE COOPER PVT. LTD. VS CIT & ANOTHER (201 2) 348 ITR 306, WE FIND THAT I.T.A .NO.-5315/DEL/2013 PAGE 3 OF 3 THE CONSISTENT EXPLANATION OFFERED BY THE ASSESSEE THAT THE MISTAKE HAS SO OCCURRED AS A RESULT OF A TYPOGRAPHICAL ERROR DESER VES TO BE ACCEPTED. THERE IS NOTHING ON RECORD TO SHOW THAT THE EXPLANATION OFFE RED SHOULD NOT BE CONSIDERED TO BE BONAFIDE. BEING A PLAUSIBLE EXPLANATION IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT IT DESERVES TO BE ACCEPTE D. THE ASSESSEE IS NOT A HABITUAL DEFAULTER AND THE VERY NATURE OF INCOME IS SUCH THA T ANY MANIPULATION IS CAPABLE OF BEING DISCOVERED THUS WHEN CONSIDERING THE OVERA LL FACTUAL MATRIX ALONGWITH THE EXPLANATION OFFERED AND THE JUDICIAL PRECEDENT AVAI LABLE, WE SET ASIDE THE IMPUGNED ORDER AND QUASH THE PENALTY ORDER. THE GROUND RAIS ED ACCORDINGLY IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 O F MAY, 2016. SD/- SD/- (PRASHANT MAHARISHI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03/05/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASS ISTANT REGISTRAR ITAT NEW DELHI