SUSHILKUMAR JAIN (HUF), MUMBAI V. DCIT CIR 20(3),

ITA 7605/MUM/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0167 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 19-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN , JM ITA NO. 7605 / MUM/20 14 ( ASSESSMENT YEAR : 2004 - 05 ) SHRI SUSHILKUMAR JAIN (HUF) 302,LINK ROSE BUILDING LINKING ROAD, SANTACRUZ (W) MUMBAI 400 054 VS. DCIT CIR 20 (3), MUMBAI PAN/GIR NO. AAHHS3988J APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI HARESH P SHAH REVENUE BY SHRI SUMAN KUMAR DATE O F HEARING 19 / 01 /201 8 DATE OF PRONOUNCEME NT 26 / 02 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A) - 31, MUMBAI DATED 31/10/2014 IN THE MATTER OF PENALTY IMPOSED U/S.271(1)(C) O F THE IT ACT. 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: - 1. THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX ERRED IN LEVYING PENALTY U/S. 271(1)(C) FOR RS.2,11,210/ - AND WHILE DOING SO HE AMONGST OTHERS FAILED TO APPRECIATE THAT THE: A) THE APP ELLANT HAD NOT CONCEALED ANY PARTICULARS OF ITS INCOME; B) THE APPELLANT HAD NOT FURNISHED ANY INACCURATE PARTICULARS OF ITS INCOME; ITA NO. 7605/MUM/2014 SHRI SUSHILKUMAR JAIN 2 C) THE APPELLANT HAD OFFERED THE INCOME DISCLOSED UNDER THE HEAD 'CAPITA L GAINS' TO BE ASSESSED AS INCOME UNDER THE HEAD 'OTHE R SOURCES' MERELY TO BUY PEACE AND TO AVOID THE PROTRACTED LITIGATION THAT MIGHT ENSUE D) THE APPELLANT HAD DISCLOSED TRULY AND CORRECTLY THE TRANSACTION OF TRANSFER OF CAPITAL ASSET (SHARES OF BUNIYAD CHEMICALS LTD.), THE DELIVERY WHEREOF WAS MADE FRO M THE DEMAT ACCOUNT OF THE APPELLANT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. FACTS IN BRIEF ARE THAT ASSESSEE OFFERED CAPITAL GAIN IN ITS RETURN OF INCOME, WHICH WAS NOT ACCEPTED BY THE AO AND HE TREATED THE SAME AS INCOME FROM OTHER SOURCES. HOWEVER, THERE IS NO ADDITION DURING THE COURSE OF ASSESSMENT. RETURN OF INCOME FILED OF RS.13,61,970/ - WAS ACCEPTED BY THE AO. THE MERE CHANGE MADE BY THE AO WAS UNDER THE HEAD OF INCOME FROM CAPITAL GAIN TO INCOME FROM OTHER SOURCES, DIFFER ENCE BETWEEN RATE OF TAX WAS PAID BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING ITSELF , B Y ACCEPTING THE SAME, AO LEVIED PENALTY FOR THE SAME . WE DO NOT FIND ANY JUSTIFICATION FOR THE LEVY OF PENALTY WITH RESPECT TO THE CHANGE OF HEAD OF INCOME, WHEN THER E IS NO ADDITION MADE DURING THE COURSE OF ASSESSMENT NOR THE TOTAL INCOME OF THE ASSESSEE WAS CHANGED AND THE RETURN INCOME WAS ACCEPTED AS IT IS. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY MERIT FOR THE LEVY OF PENALTY OF RS.2,11,210/ - U/S.271(1)(C) O F THE IT ACT. IN THE RESU LT, APPEAL OF ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS / /201 8 SD/ - ( SANDEEP GOSAIN ) SD/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED / /201 8 KARUNA SR. PS ITA NO. 7605/MUM/2014 SHRI SUSHILKUMAR JAIN 3 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// ITA NO. 7605/MUM/2014 SHRI SUSHILKUMAR JAIN 4 DATE INITIAL 1. DRAFT DICTATED ON 24/01/20 18 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 24/01/2018 (DICTATION PAD HAS BEEN ENCLOSED HEREWITH ALONGWITH ORIGINAL FILE ) SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.