DCIT, Circle -5 Kolkata, Kolkata V. M/s Swarnaratna Secutities (P) Ltd., Kolkata

ITA 882/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3065 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2013
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 05-06-2012
• Court: TRIBUNAL
• Department Lawyers: NIRANJAN SATAPATI
• Assessee Lawyers: RAJEEV KUMAR ADVOCTE
• Keywords: Business income; Condonation of delay
• Section: 14A

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [ () . .. . . .. . , ,, , , !' ##$ %& ##$ %& ##$ %& ##$ %& ] ]] ] [BEFORE HONBLE SRI K.K.GUPTA, AM & HONBLE SRI GEORGE MATHAN, JM] '( '( '( '( /ITA NO.882/KOL/2012 )&* !+,/ ASSESSMENT YEAR : 2006-07 (%. / APPELLANT ) - !& - ( 01%. /RESPONDENT) D.C.I.T., CIRCLE-5, -VERSUS- M/S.SWARNARATNA SECUR ITIES (P)LTD KOLKATA KOLKATA (PAN: AADCS 8274 N) %. 2 3 / FOR THE APPELLANT: SHRI NIRANJAN SATAPATI, SR.DR 01%. 2 3 / FOR THE RESPONDENT: SHRI RAJEEV KUMAR, ADVOCTE. &!4 2 5 /DATE OF HEARING : 02.04.2013 6+ 2 5 /DATE OF PRONOUNCEMENT : 02.04.2013 7 / ORDER PER BENCH THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T.(A)-VI, KOLKATA IN APPEAL NO.1519A/VI/CIR-5/09-10/KOL DATED 13.02.2012 FOR THE ASSESSMENT YEAR 2006-07 AGAINST THE DELETION OF PEN ALTY LEVIED U/S 271(1)(C) OF THE I.T.ACT. 2. SHRI NIRANJAN SATAPATI, SR.DR REPRESENTED ON BE HALF OF THE REVENUE AND SHRI RAJEEV KUMAR, ADVOCATE REPRESENTED ON BEHALF OF TH E ASSESSEE. 3. THE APPEAL FILED BY THE REVENUE IS DELAYED BY 2 0 DAYS. NECESSARY AFFIDAVIT FOR CONDONATION OF DELAY HAS BEEN FILED. THE LD. AR HAS SPECIFICALLY SUBMITTED THERE IS NO OBJECTION IF THE DELAY IS CONDONED AND THE APPEAL I S DISPOSED OF ON MERITS. CONSEQUENTLY WITHOUT GOING INTO THE REASONS OF THE DELAY IN FILING THE APPEAL THE DELAY STANDS CONDONED AND THE APPEAL IS DISPOSED OF ON ME RITS. IT A NO.882/KOL/2012 2 4. IT WAS SUBMITTED BY THE LD. DR THAT THE AO HAD NOTICED IN THE COURSE OF ASSESSMENT THAT THE DEDUCTION CLAIMED U/S 88E OF TH E ACT BEING REBATE ON THE TAX IN RESPECT OF THE SHARE TRANSACTIONS WHERE STT HAS BEE N PAID WAS WRONGLY COMPUTED. IT WAS THE SUBMISSION THAT CONSEQUENTLY THE AO HAD RE- WORKED THE REBATE U/S 88E OF THE ACT. IT WAS THE SUBMISSION THAT THE LD. AO HAD APPL IED THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF DHARMENDRA TEX TILES 306 ITR 277 AND HAD HELD THAT MENS REA IS NOT ESSENTIAL FOR ATTRACTING THE CIVIL LIABILIT Y OF THE PENALTY. BY TREATING THE DIFFERENTIAL OF THE REBATE AS CLAIMED BY THE AS SESSEE AND AS COMPUTED BY THE AO U/S 88E OF THE ACT TO AN EXTENT OF RS.9,81,762/- AS THE INCOME FOR WHICH INACCURATE PARTICULARS HAVE BEEN FURNISHED THE AO LEVIED PENAL TY U/S 271(1)(C) OF THE ACT.. IT WAS THE SUBMISSION THAT ON APPEAL THE LD. CIT(A) HAD DE LETED THE PENALTY BY RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF CIT VS RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC). IT WAS THE SUB MISSION THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD MADE A WRONG CL AIM AND PENALTY HAD BEEN RIGHTLY LEVIED BY THE AO. IT WAS THE SUBMISSION THAT THE OR DER OF LD. CIT(A) WAS LIABLE TO BE REVERSED. 5. IN REPLY THE LD. AR SUBMITTED THAT INADVERTENTLY THE ASSESSEE HAD NOT FILED THE APPEAL AGAINST THE ASSESSMENT ORDER WHEREIN THE CLA IM OF REBATE U/S 88E HAD BEEN RE- WORKED BY THE AO. IT WAS THE SUBMISSION THAT THERE WAS NO CONCEALMENT OF INCOME IN ANY CASE AS THE ASSESSED INCOME REMAINED THE SAME E XCEPT FOR A MARGINAL ADDITION OF RS.81,468/-. IT WAS THE SUBMISSION THAT THIS MARGIN AL INCREASE IN THIS CASE WAS ALSO ON ACCOUNT OF DISALLOWANCE U/S 14A OF THE ACT AND U/S 40(A)(IA) OF THE ACT. IT WAS THE SUBMISSION THAT THE RE-WORKING OF THE REBATE U/S 88 E OF THE ACT DID NOT RESULT IN ANY ENHANCEMENT OF THE ASSESSEES INCOME. IT WAS THE SU BMISSION THAT THE PENALTY HAD BEEN RIGHTLY DELETED BY THE LD. CIT(A). HE ALSO RELIED U PON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPE RS PVT. LTD. REPORTED IN 348 ITR 308 (SC). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OUTSET A READING OF THE PROVISION OF SECTION 271(1)(C) OF THE IT ACT CLEARL Y SHOWS THAT THE WORDS USED IS HAS IT A NO.882/KOL/2012 3 CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS OF SUCH INCOME. A PERUSAL OF THE PROVISION OF SECTION 88E OF THE ACT CLEARLY SHOWS THAT THE SAID REBATE IS A REBATE FROM THE AMOUNT OF INCOME T AX IN RESPECT OF STT. A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE CLAIM O F STT AS MADE BY THE ASSESSEE DOES NOT DIFFER FORM THE ACTUAL STT PAID. IT IS ONLY WHE N COMPUTING THE REBATE IN RESPECT OF STT U/S 88E OF THE ACT, A DIFFERENTIAL HAS COME INT O PLAY ON ACCOUNT OF THE RATIO BETWEEN THE TOTAL EXPENSES AND THE INCOME FROM SHAR E BUSINESS WHEN COMPARED WITH THE TOTAL BUSINESS RECEIPTS. NONE OF THE FIGURES OF INCOME AS DISCLOSED BY THE ASSESSEE HAS BEEN FOUND TO BE WRONG OR SUPPRESSED. THUS THE AO HAS NOT BEEN ABLE TO ESTABLISH THAT THE ASSESSEE HAS CONCEALED ITS INCOME OR THAT THE ASSESSEE HAS FURNISHED ANY INACCURATE PARTICULARS OF INCOME. THE COMPUTATION O F THE REBATE U/S 88E OF THE ACT CANNOT BE SAID TO BE HAVING ANY EFFECT ON THE INCOM E DISCLOSED BY THE ASSESSEE. THE MISTAKE IN THE CALCULATION CAN AT BEST BE AN ARITHM ETICAL MISTAKE WHICH IN NO WAY AFFECTS THE INCOME DISCLOSED BY THE ASSESSEE. IN TH E CIRCUMSTANCES, ON THE FACTS OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE LD. CIT(A ) WAS RIGHT IN DELETING THE PENALTY AS LEVIED. OUR VIEW ALSO FINDS SUPPORT FROM THE DECISI ON OF THE HONBLE SUPREME COURT IN THE CASE OF PRICE WATERHOUSE COOPERS PVT. LTD. R EFERRED TO SUPRA. IN THE CIRCUMSTANCES THE APPEAL OF THE REVENUE STANDS DISM ISSED. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT ON 02.04.2013. SD/- SD/- [ .., ] [ .##$ %& , ] [K.K.GUPTA] [ GEO RGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (5 5 5 5) )) ) DATE: 02.04.2013. R.G.(.P.S.) IT A NO.882/KOL/2012 4 7 2 0))8 98+:- COPY OF THE ORDER FORWARDED TO: 1. M/S.SWARNARATNA SECURITIES (P) LTD., 3A, HARE STREE T, KOLKATA-700001. 2 THE D.C.I.T., CIRCLE-5, KOLKATA. 3 . CIT KOLKATA 4. CIT(A)- VI, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA 18 0)/ TRUE COPY, 7&/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES