ACIT 32(3), MUMBAI V. UNITED BUILDERS, MUMBAI

ITA 7004/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7419 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 01-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN , HON'BLE ACCOUNTANT MEMBER ITA NO . 7004 /MUM/2016 (A.Y : 2007 - 08 ) A.C.I.T. 32(3) R.NO.108, 1 ST FLOOR, C - 11, PRATYAKSHKAR BHAVAN, BKC BANDRA , MUMBAI 400051 V . M/S. UNITED BUILDERS UNIT NO. 17, B - WING GANJAWALA APARTMENT SVP ROAD, BORIALI(W) MUMBAI 400 092 PAN NO : AABFU 9291 J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GOVIND JAVERI DEPARTMENT BY : SHRI POOJA SWAROOP DATE OF HEARING : 18.04.2018 DATE OF PRONOUNCEMENT : 25 .04 .2018 O R D E R PER C.N. PRASAD , JUDICIAL MEMBER 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 44 , MUMBAI DATED 16.09.2016 FOR THE ASSESSMENT YEAR 2007 - 08 IN DELETING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. 2 ITA NO.7004/MUM/2016 (A.Y: 2007 - 08) M/S. UNITED BUILDERS 2. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, THE QUANTUM ADDITION MADE IN THE ASSESSMENT PROCEEDINGS HAS BEEN DELETED BY THE COORDINATE BENCH IN ITA.NO. 4864/MUM/2013 DATED 29.07.2016. COPY OF THE ORDER IS PLACED ON RECORD. IT IS SUBMITTED THAT SINCE THE QUANTUM ADDI TION /DISALLOWANCE IS DELETED BY THE TRIBUNAL THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT WILL NOT SURVIVE. 3. LD.DR VEHEMENTLY FAIRLY CONCEDES THE POSITION. 4. WE HAVE PERUSED THE ORDERS OF THE COORDINATE BENCH IN QUANTUM PROCEEDINGS AND FIND THAT THE TRIBUNAL HELD THAT THERE IS N O JUSTIFIC ATION ON THE PART OF THE LOWER AUTHORITIES IN RE - CHARACTERIZING THE INCOME EARNED FROM SALE OF LAND AS INCOME FROM BUSINESS IN STEAD OF CAPITAL GAINS. WE FIND THAT PENALTY WAS LEVIED BY THE ASSESSING OFFICER FOR THE REASON THAT INCOME WAS ASSESSED UNDER THE HEAD INCOME FROM BUSINESS AS AGAINST INCOME FROM CAPITAL GAINS AND ASSESSEE HAD COMMITTED DEFAULT WITHIN THE MEANING OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT IN REPORTING INCOME UNDER HEAD OF CAPITAL GAINS AS AGAINST BUSINESS INCOME. SINCE THE QUANTUM ADDITION IS DELETED BY THE TRIBUNAL THE PENALTY LEVIED U/S.271(1)(C) OF THE ACT WILL NOT SURVIVE AND THUS WE HOLD THAT THE LD.CIT(A) RIGHTLY DELETED THE PENALTY TAKING NOTE OF THE FACT THAT THE TRIBUNAL DELETED THE ADDITION MADE IN QUANTUM PROCEED INGS. 3 ITA NO.7004/MUM/2016 (A.Y: 2007 - 08) M/S. UNITED BUILDERS 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 25 TH APRIL , 2018 . SD/ - SD/ - ( N. K. PRADHAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 25 / 04 / 201 8 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM