MRS CHHAYA HIMMAT JAGDA, MUMBAI V. INCOME TAX OFFICER-32(1)(2), MUMBAI

ITA 968/MUM/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3716 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 08-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JM & SHRI PRASHANT MAHARISHI, AM आयकरअपीलसं./ I.T.A. No. 968/Mum/2022 (ननधधारणवर्ा / Assessment Year: 2014-15) Mrs. Chhaya Himmat Jagda 602-Manas Moti Building No. 1 (6 th floor), Devidas Lane, Near Lawrence School, Borivali (west), Mumbai-400 092 बनाम/ Vs. ITO ward 32(1)(2) C-11, Pratyakshkar Bhavan, Bandra Kurla Complex, Bandra(east), Mumbai-400 051 स्थधयीलेखधसं./जीआइआरसं./PAN No. AAEPJ7836R (अपीलधथी/Appellant) : (प्रत्यथी / Respondent) अपीलधथीकीओरसे/ Appellant by : Shri M. Subramanian, Ld. AR प्रत्यथीकीओरसे/Respondent by : Shri Praveen Shekhar, Ld. DR सुनवधईकीतधरीख/ Date of Hearing : 04.08.2022 घोर्णधकीतधरीख / Date of Pronouncement : 24.08.2022 आदेश / O R D E R Per Amit Shukla, Judicial Member: The aforesaid appeal has been filed by the assessee against the impugned order dated 21.04.2022, passed by National Faceless 2 I.T.A. No. 968/Mum/2022 Mrs. Chhaya Himmat Jagda Appeal Centre (NFAC), Delhi in relation to penalty proceedings u/s 271(1)(c) for AY 2014-15. 2. Assessee is aggrieved by levy of penalty of Rs. 4,90,000/- on account of sale consideration of Rs. 17,17,275/- treating it as business income instead of capital gain. 3. The facts in brief are that assessee has claimed long term capital gain on some share transactions of Rs. 16,22,890/- on sale of shares of M/s Sunrise Asia Ltd. The said long term capital gain was treated as exempt u/s 10(38). Ld. AO after detail discussion has held it to be bogus long term capital gain on the basis of certain information received from Kolkata investigation directorate. The penalty has been levied by the AO holding it to be concealment of income as well as furnishing inaccurate particulars of income. 4. Ld. CIT(A) has too confirmed the penalty. 5. Before us, Ld. Counsel for the assessee submitted that here in this case AO while issuing notice u/s 274 r.w.s. 271 has not specified the charge under which limb, he intended to impose penalty. In support of it, he filed copy of notice dated 15.12.16 and submitted that penalty levied by AO is not sustainable in law. 3 I.T.A. No. 968/Mum/2022 Mrs. Chhaya Himmat Jagda 6. On the other hand, Ld. DR strongly relied on the order of Ld. CIT(A). 7. After considering the aforesaid submissions and perused the material placed on record, we find that AO though in his assessment order made addition of Rs. 17,17,275/- and stated that penalty proceedings is initiated separately for furnishing inaccurate particulars of income. However, while issuing notice u/s 274 r.w.s. 271, he has not specified the charge under which limb, he intends to impose the penalty. Even in the penalty order, he has mentioned both the charges which are not in accordance with law. 8. The full Bench of Hon’ble Bombay High Court in Mohd. Farhan A. Shaikh Vs. Dy.CIT (2021) 125 taxmann.com 253 (Bom) has considered this very issue. Answering the question in affirmative, the Full Bench held that a defect in notice of not striking the relevant words vitiates the penalty even though the AO had properly recorded the satisfaction for imposition of penalty in the order u/s 143(3) of the Act. In another judgment, the Hon’ble Bombay High Court in Pr.CIT Vs. Golden Peace Hotels and Resorts (P.) Ltd. (2021) 124 taxmann.com 248 (Bom) also took similar view that 4 I.T.A. No. 968/Mum/2022 Mrs. Chhaya Himmat Jagda where inapplicable portions were not struck off in the penalty notice, the penalty was vitiated. The SLP of the Department against this judgment has recently been dismissed by the Hon’ble Supreme Court in Pr.CIT Vs. Golden Peace Hotels and Resorts (P.) Ltd. (2021) 124 taxrnann.com 249 (SC). In view of the overwhelming position, it is clear that where the charge is not properly set out in the notice u/s 274 viz., both the limbs stand therein without striking off of the inapplicable limb, but the penalty has been, in fact, levied for one of the two, such a penalty order gets vitiated. 9. Thus, the aforesaid propositions are squarely applicable to this case. Accordingly, the penalty levied by AO is bad in law and the same is quashed. 10. In the net result, the appeal filed by the assessee stands allowed. Orders pronounced in the open court on 24 th August, 2022. Sd/- Sd/- (Prashant Maharishi) (Amit Shukla) Accountant Member Judicial Member मुंबई Mumbai;नदनधंक Dated : 24/08/2022 Sr.PS. Dhananjay 5 I.T.A. No. 968/Mum/2022 Mrs. Chhaya Himmat Jagda आदेशकीप्रतितितिअग्रेतिि/Copy of the Order forwarded to : 1. अपीलधथी/ The Appellant 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned 5. नवभधगीयप्रनतनननध, आयकरअपीलीयअनधकरण, मुंबई/ DR, ITAT, Mumbai 6. गधर्ाफधईल / Guard File आदेशानुसार/ BY ORDER, .उि/सहायकिंजीकार (Dy./Asstt.Registrar) आयकरअिीिीयअतिकरण, मुंबई/ ITAT, Mumbai