NATHA HOLDING AND INVESTMENT P.LD, V. ITO RG 1(2)4,

MA 213/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9098 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1995-1996
• Appeal Filed On: 29-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K G KUTTY
• Assessee Lawyers: N R AGARWAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHIRI R. S. SYAL, AM AND SHRI AMIT SHUKLA, JM M.A. NO. : 213/MUM/2012 (ARISING OUT OF I.T.A. NO. 95/MUM/2010) ASSESSMENT YEAR : 1995-96 M/S. NATH HOLDING & INVESTMENT PVT. LTD. 1, CHATEU WINDSOR, 86, VEER NARIMAN ROAD, MUMBAI-400 020 PAN NO: AAACN 1196 K VS. ITO RANGE - 1(2)(4) 5 TH FLOOR, IYAKAR BHAVAN, CHURCHGATE, MUMBAI-400 020 (APPELLANT) (RESPONDENT) A SSESSEE BY : SHRI N. R. AGARWAL DEPARTMENT BY : SHRI K. G. KUTTY DAT E OF HEARING : 14.09.2012 DATE OF PRONOUNCEMENT : 14.09.2012 ORDER PER R. S. SYAL, AM : BY MEANS OF THE PRESENT MISCELLANEOUS APPLICATION, THE ASSESSEE REQUESTS FOR THE RECTIFICATION OF THE IMPUGNED ORDE R IN WHICH THE PENALTY U/S.271(1)(C) HAS BEEN UPHELD TO THE MINIMUM LEVEL . THE LD. AR CONTENTED THAT IF THE ADDITIONAL GROUND RAISED BY T HE ASSESSEE BEFORE THE TRIBUNAL IN THE QUANTUM PROCEEDINGS WOULD HAVE BEEN ACCEPTED, THERE WOULD HAVE BEEN NO ADDITION CALLING FOR ANY CONSEQU ENTIAL PENALTY. IT WAS SUBMITTED THAT FOR THE IMMEDIATE PRECEDING YEAR, SU CH GROUND WAS ACCEPTED. IT WAS, THEREFORE, PLEADED THAT THE PENA LTY BE CANCELLED. IN THE OPPOSITION, THE LD. DR SUBMITTED THAT THERE WAS NO REASON TO INTERFERE IN M.A. NO. 213/MUM/2012 M/S. NATH HOLDING & INVESTMENT PVT. LTD. 2 THE IMPUGNED ORDER AS THE SAME IS BASED ON CONSIDER ATION OF ALL THE RELEVANT FACTS AND CIRCUMSTANCES OF THE CASE. 2. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE TRIB UNAL IN THE QUANTUM PROCEEDINGS HAS HELD THAT THE ASSESSEE FAILED TO PR OVE THE GENUINENESS OF THE SHARE TRANSACTIONS. RESULTANTLY THESE TRANSACT IONS WERE HELD TO BE SHAM. THE CONTENTION NOW RAISED BEFORE US BY THE L D. AR ABOUT THE EXEMPTION OF DIVIDEND INCOME AS BUSINESS INCOME OR OTHERWISE WAS ALSO TAKEN DURING THE COURSE OF HEARING IN THE PROCEEDIN GS U/S 254(1), AS THE SAME IS EMANATING FROM BEEN THE DISCUSSION MADE BY THE TRIBUNAL IN THE IMPUGNED ORDER ON PAGE 6. IT IS ON THE CONSIDERATI ON OF ALL THE RELEVANT FACTS AND CIRCUMSTANCES OF THE CASE THAT THE TRIBUN AL DECIDED TO UPHOLD THE PENALTY AT 100% OF THE TAX DUE, INSTEAD OF 250 % OF THE TAX WHICH WAS AFFIRMED BY THE LOWER AUTHORITY. IN OUR CONSIDERED OPINION THERE IS NO MISTAKE MUCH LESS ANY MISTAKE APPARENT FROM THE REC ORD REQUIRING ANY RECTIFICATION. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF SEPTEMBER, 2012. SD/- SD/- ( AMIT SHUKLA) ( R. S. SYAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 14.09.2012 M.A. NO. 213/MUM/2012 M/S. NATH HOLDING & INVESTMENT PVT. LTD. 3 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, J- BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI