ASST CIT CIR 21(1), MUMBAI V. MEETA V. SHAH, MUMBAI

ITA 5431/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5866 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 29-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V C SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B , MUMBAI BEFORE SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 5431/M/2012 ASSESSMENT YEAR: 2008 - 09 ASST. C.I.T., CIRCLE 21(1), 6 TH FLOOR, ROOM NO.601, PRATYAKSHA KAR BHAVAN, BANDRA - KURLA COMPLEX, BANDRA (E), MUMBAI 400 0 51 VS. SMT. MEETA V. SHAH, 14, GOLDEN BEACH CHS LTD., RUIA ROAD, GANDHI GRAM, JUHU, MUMBAI 400 049 PAN: AACPS5649B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.C. SHAH, A.R. REVENUE BY : SHRI MALLIKARJUN UTTURE, D.R. DATE OF HEARING : 26.03 .201 4 DATE OF PRONOUNCEMENT : 26.03.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS CIT(A)] DATED 25.06.12. 2. THE SOLE GRIEVANCE OF THE REVENUE IS AGAINST THE DELETION OF THE PENALTY BY THE LD. CIT(A) OF RS.4,60,000/ - WHICH WAS LEVIED BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT). 3. BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS DE BITED SECURITIES TRANSACTION TAX (STT) CHARGES TO THE TUNE OF RS.13,41,6 4 5/ - TO THE PROFIT AND ITA NO. 5431/M/2012 SMT. MEETA V. SHAH 2 LOSS ACCOUNT. THE AO FURTHER FOUND THAT THE SAME HAS NOT BEEN ADDED BACK IN THE COMPUTATION OF INCOME. AS THE STT CHARGES ARE ALLOWABLE AS REBATE UNDER SECTION 88E OF THE ACT, THE STT PAYMENT WAS DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE. THE AO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT IN RESPECT OF THIS DISALLOWANCE OF STT CHARGES. 4. AT THE OUTSET, THE LD. A.R. HAS BROUGHT OU R ATTENTION THAT IN SIMILAR FACTS AND CIRCUMSTANCES IN THE CASE OF RELATIVE OF THE ASSESSEE SMT. JIMIT V. SHAH IN ITA NO. 5430/MUM/2012 THE CO - ORDINATE BENCH OF THE TRIBUNAL HAS DELETED THE PENALTY OBSERVING AS UNDER: 8. WE HAVE CONSIDERED THE RIVAL SUBMI SSIONS AND CAREFULLY PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE DECISIONS RELIED UPON BY THE RIVAL PARTIES. IT IS A TRITE LAW THAT PENALTY PROCEEDINGS ARE DIFFERENT FROM ASSESSMENT PROCEEDINGS. FINDINGS GIVEN IN THE ASSESSMENT PROCEEDINGS MAY HA VE GOOD EVIDENTIARY VALUE BUT THE SAME ARE NOT CONCLUSIVE SO FAR AS PENALTY PROCEEDINGS ARE CONCERNED. EACH AND EVERY ADDITION MADE IN THE ASSESSMENT ORDER CANNOT AUTOMATICALLY LEAD TO THE LEVY OF PENALTY FOR CONCEALMENT OF INCOME. OUR VIEW IS FORTIFIED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS (SUPRA). IT IS AN UNDISPUTED FACT THAT UPTO ASSESSMENT YEAR 2008 - 09, AN ASSESSEE WHO WAS A TRADER IN SHARES WAS ELIGIBLE FOR TAX REBATE U/S.88E OF THE ACT. THE FINANCE ACT , 2008 BROUGHT AN AMENDMENT BY WHICH STT CHARGES WERE ALLOWED AS A DEDUCTION. THE ASSESSEE MISTOOK THIS AMENDMENT TO BE APPLICABLE FROM A.Y.2008 - 09 AND CHARGED THE STT PAID TO THE PROFIT AND LOSS ACCOUNT, WHICH SHE WAS OTHERWISE ELIGIBLE TO CLAIM AS REBAT E U/S.88E OF THE ACT. THE DISALLOWANCE WAS MADE BY THE AO IN THE ASSESSMENT ORDER. THE ASSESSEE REALISED HER MISTAKE OF LAW AND DID NOT PURSUE THE MATTER BY CARRYING IT TO THE FIRST APPELLATE AUTHORITY. THIS CONDUCT OF THE ASSESSEE, IN OUR HUMBLE OPINIO N, ESTABLISHES THE BONAFIDES OF THE CASE. RESPECTFULLY FOLLOWING THE RATIO OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS (SUPRA), WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). THE DECISIO N RELIED UPON BY THE LD. DR ARE NOT RELEVANT TO THE FACTS OF THE PRESENT CASE. ITA NO. 5431/M/2012 SMT. MEETA V. SHAH 3 5. SINCE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE IDENTICAL TO THE ABOVE CASE, HENCE FOLLOWING THE SAME RATIO, THE ORDER OF THE LD. CIT(A) DELETING THE PENALTY IS HEREBY UPHELD. 6. IN THE RESULT, APPEAL OF THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.03. 201 4 . SD/ - SD/ - ( N. K. B ILLAIYA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 26.03. 201 4 . * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C B ENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.