DILIP C BAGRI, MUMBAI V. ITO 4(1)(1), MUMBAI

ITA 6981/MUM/2010

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3331 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 07-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , !' , # , $ BEFORE S/SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER / I.T.A. NO.6981/M/10 ( # % &% / ASSESSMENT YEAR: 2006-07) SHRI DILIP C. BAGRI 404, STOCK EXCHANGE TOWER, DALAL STREET, FORT, MUMBAI-400001 / VS. INCOME TAX OFFICE(4)(1)(1 ) ROOM NO. 636, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AACPB2283J ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 16.09.2015 !' /DATE OF PRONOUNCEMENT: 20.01.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL CHALLENG ING THE ORDER DATED 04.08.2010 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-8, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 2006-07. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LEARNE D CIT(A) FOR CONFIRMING THE PENALTY TO THE TUNE OF RS.21,39,513/- LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT). ASSESSEE BY: SHRI NITESH JOSHI DEPARTMENT BY: SHRI SUBACHAN RAM ITA NO.6981/M/10 A.Y. 2006-07 2 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORDS CAREFULLY. THE FAC TS OF CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR A.Y.2006-07 ON 3 0.10.2006 DECLARING TOTAL INCOME AT RS.6,18,703/-. THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT ON 05.07.2007 DETERMINING REFUND OF RS.34,789/-. SUBS EQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) DATED 2 4.10.2007 AND NOTICE U/S. 142(1) WERE ISSUED ON THE ASSESSEE. IT CAME INTO THE NOTI CE THAT THE ASSESSEE CLAIMED THE LONG TERM CAPITAL GAIN OF RS.1,06,08,050/- ON DEBEN TURES U/S. 10(38) OF THE ACT AND ALSO CLAIMED SHORT TERM CAPITAL GAIN OF RS.1,94 ,522/- ON DEBENTURES. SINCE LONG TERM CAPITAL GAIN OF RS.1,06,08,050/- ON DEBEN TURES & SHORT TERM CAPITAL GAIN OF RS.1,94,522/- ON DEBENTURES WERE NOT EXEMPT ED U/S. 10(38) OF THE ACT, THEREFORE, THE NOTICE WAS GIVEN TO THE ASSESSEE WHI CH WAS REPLIED BY THE ASSESSEE ADMITTING HIS MISTAKE AND SUBSEQUENTLY FILED THE RE VISED RETURN. THEREAFTER, THE ASSESSING OFFICER TOOK THE ACTION AGAINST THE ASSES SEE U/S. 271(1)(C) AND LEVIED THE PENALTY OF RS.21,39,513/- WHICH WAS CONFIRMED BY TH E LEARNED CIT(A) HENCE THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE CONTENTION OF THE REPRESENTATIVE OF THE ASSE SSEE IS THAT THE ASSESSEE DID NOT CONCEAL ANY INCOME NOR FURNISHED INACCURATE PAR TICULARS TO AVOID TAX. IT WAS FURTHER SUBMITTED THAT THE BUDGET SPEECH OF FINANCE MINISTER STATED THAT THE LONG TERM CAPITAL GAIN ARISING ON SECURITIES IS PROPOS ED TO BE EXEMPTED. SINCE SECURITIES INCLUDES DEBENTURES, THEREFORE THE ASS ESSEE WAS UNDER THE IMPRESSION THAT LONG TERM CAPITAL GAIN ARISING ON SALE OF DEBE NTURES WAS EXEMPTED. THEREFORE NO PENALTY IS LEVIABLE IN VIEW OF THE LAW SETTLED IN 322 ITR 158(SC) CASE TITLED AS CIT VS. RELIANCE PETROPRODUCTS (P) LTD. I N VIEW OF ORDER PASSED BY CO- ITA NO.6981/M/10 A.Y. 2006-07 3 ORDINATE BENCH DATED 05.01.2015 IN I.T.A. NO.1113/M /2012 TITLED AS MR. NARAYAN RAMCHANDRA RATHI. HOWEVER, LEARNED DEPARTMENTAL RE PRESENTATIVE STRONGLY RELIED UPON THE ORDER PASSED BY THE LEARNED CIT(A) IN QUES TION. IN THE INSTANT CASE ASSESSEE NOWHERE CONCEALED THE PARTICULARS OF INCOM E NOR FURNISHED ANY INACCURATE PARTICULARS OF INCOME. ASSESSEE CLAIMED EXEMPTION UPON THE LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL GAIN U/S. 10(38) OF THE ACT. HOWEVER, WHEN THE AUTHORITY DREW THE ATTENTION OF THE ASSESSEE TOWARD S THIS FACT THAT THE CLAIM OF THE ASSESSEE OF THE EXEMPTION UPON THE LONG TERM CAPITA L GAIN AND SHORT TERM CAPITAL GAIN IS NOT IN ACCORDANCE WITH LAW THEN THE ASSESSEE FILED THE REVISED RETURN BY PAYING THE ENTIRE TAX TO THE RESPONDENT. IN CAS E RELIANCE PETROPRODUCTS (P) LTD.(SUPRA) IT HAS BEEN HELD THAT THE CLAIM WHICH W AS NOT SUSTAINABLE IN THE EYES OF LAW, WILL NOT GIVE RISE TO FURNISH OF INACCURATE PA RTICULARS OF INCOME. MOREOVER UNDER THE SIMILAR CIRCUMSTANCES CO-ORDINATE BENCH O F MUMBAI IN I.T.A. NO.1113/M/2012 MR. NARAYAN RAMCHANDRA RATHI (SUPRA) HAS ALSO ACCEPTED THE CONTENTION OF THE ASSESSEE AND SET ASIDE THE PENALT Y. BY FOLLOWING THE ABOVE MENTIONED LAW WE ARE OF THE VIEW THAT PENALTY LEVIE D IN THIS CASE IS LIABLE TO BE DELETED. ACCORDINGLY, WE SET ASIDE THE ORDER OF LE ARNED CIT(A) IN QUESTION AND DELETE THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT . 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY , 2016. SD/- SD/- (B.R.BASKARAN) (AMARJI T SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 20 TH JANUARY, 2016 MP MP MP MP ITA NO.6981/M/10 A.Y. 2006-07 4 ( ) *# !+ ,+& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ( / BY ORDER, - & //TRUE COPY// -/' (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI