DCIT 12(1)(2), MUMBAI V. BUSINESSMATCH SERVICES (I) P. LTD, MUMBAI

ITA 7527/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9116 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 17-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMARDR
• Assessee Lawyers: JITENDRA JAINAR
• Keywords: Business income; Additional evidence
• Section: 143(3)

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -BBENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND AMARJIT SINGH,JUDICIAL MEMBER ./I.T.A./7527/MUM/2014, / ASSESSMENT YEAR: 2007-08 DCIT-12(1)(2) 2 ND FLOOR,R.NO.223, AAYAKAR BHAVAN, M.K. ROAD MUMBAI-20. VS. M/S. BUSINESSMATCH SERVICES (I) PVT. LTD. 2, NEPTUNE II, SMT. NARGIS DUTT RD. PALI HILL, BANDRA (W) MUMBAI-400 050. PAN:AAAPV 8776 E ( /APPELLANT ) ( / RESPONDENT) / REVENUE BY: SHRI SUMAN KUMAR-DR /ASSESSEE BY: SHRI JITENDRA JAIN-AR / DATE OF HEARING: 30/11/2016 / DATE OF PRONOUNCEMENT: 06/01/2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) , / PER RAJENDRA A.M. - CHALLENGING THE ORDER DT. 02.09.2014 OF CIT(A)-19, MUMBAI THE ASSESSING OFFICER (A.O.) HAS FILED THE PRESENT APPEAL. THE ASSESSEE COMPANY - IS ENGAGED IN THE BUSINESS OF PROVIDING CONSULTANCY SERVICES, FILED ITS RETURN OF INCOME ON 31.10.2007 DECLARING TOTAL INCOME AT RS.1,00,57,939/-. THE AO COMPLETED THE ASSESSMENT U /S. 143(3) OF THE ACT ON 7.12.2009 DETERMINING ITS INCOME AT RS.4.48 CRORES. HE ALSO I NITIATED PENALTY PROCEEDINGS FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME U/S. 271 (1)(C ) OF THE ACT. 2. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA) WHO CONFIRMED THE ORDER OF THE AO.T HE FAA UPHELD THE ACTION OF AO REGARDING TREATMENT OF CAPITAL GAINS AS BUSINESS IN COME. THE TRIBUNAL VIDE ITS ORDER DATED 19.8.15 (ITA/7267/MUM/2010 AY 07-08) REVERSED THE O RDER OF THE FAA AND DIRECTED THE AO TO ASSESS THE GAINS ARISING ON SALE OF SHARES UNDER THE HEAD INCOME FROM CAPITAL GAINS. 7527/M/14-BUSINESSMATCH 2 3. MEANWHILE THE AO PASSED ORDER LEVYING PENALTY OF RS .86.67 LAKHS U/S. 271(1)(C ) OF THE ACT. IN THE APPELLATE PROCEEDINGS, THE FAA HELD THA T THE SOLE ISSUE WAS THE HEAD UNDER WHICH THE INCOME WAS TO BE DISCLOSED, THAT NO ADDITIONAL EVIDENCE OR MATERIAL WAS BROUGHT ON RECORD BY THE AO WHICH HAD LED TO CHARGING OF TAX OF AN IN COME THAT HAD NOT BEEN PREVIOUSLY DISCLOSED, THAT THE ASSESSED HAD DISCLOSED ALL THE FACTS, THAT THE ADDITIONAL TAX SOUGHT WAS ON ACCOUNT OF DIFFERENCE IN THE RATE OF TAXES, THAT TH E ISSUE WAS OF DEBATABLE NATURE FINALLY HE DELETED THE PENALTY LEVIED BY AO. 4. BEFORE US THE DEPARTMENTAL REPRESENTATIVE (DR) STAT ED THAT MATTER COULD BE DECIDED ON MERITS. THE AUTHORISED REPRESENTATIVE (AR) REFERRED TO THE ORDER OF THE TRIBUNAL IN ITS OWN CASE FOR THE AY 2007-08 /FOR THE YR UNDER CONSIDERA TION. 5. WE FIND THAT THE TRIBUNAL HAS HELD THAT THE INCOME ARISING OUT SHARE TRANSACTION ENTERED INTO BY THE ASSESSEE HAS TO BE TAXED UNDER THE HEAD CAPI TAL GAINS AS AGAINST BUSINESS INCOME. AS THE QUANTUM HAS BEEN DELETED BY THE TRIBUNAL, SO T HE PENALTY WOULD NOT SURVIVE. EFFECTIVE GROUND OF APPEAL IS DECIDED AGAINST THE AO. AS A RESULT, APPEAL FILED BY AO STANDS DISMISSED. !'# $%&' . ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JANUARY, 2017. , 2017 SD/- SD/- ( $ / AMARJIT SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06 .01 .2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.