Shri Jayantikumar N.Patel, Bhavnagar v. The ACIT.,Circle-1,, Bhavnagar

ITA 1476/AHD/2011 | 2004-2005
Pronouncement Date: 03-11-2014 | Result: Allowed

Appeal Details

RSA Number 147620514 RSA 2011
Assessee PAN AAQPP4655Q
Bench Ahmedabad
Appeal Number ITA 1476/AHD/2011
Duration Of Justice 3 year(s) 5 month(s) 8 day(s)
Appellant Shri Jayantikumar N.Patel, Bhavnagar
Respondent The ACIT.,Circle-1,, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 03-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 03-11-2014
Date Of Final Hearing 16-09-2014
Next Hearing Date 16-09-2014
Assessment Year 2004-2005
Appeal Filed On 25-05-2011
Judgment Text
C IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH . .. . . .. . !' !' !' !' #$ %&'( #$ %&'( #$ %&'( #$ %&'( )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA VICE-PRESIDENT AND ANIL CHATURVEDI ACCOUNTANT MEMBER) ITA NO.1476/AHD/2011 [ASSTT.YEAR 2004-2005] SHRI JAYANTKUMAR N. PATEL PLOT NO.2214/B.C-1 MANAN HILL DRIVE BHAVNAGAR. PAN : AAQPP 4655 Q /VS. ACIT CIR.1 BHAVNAGAR. ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 ) / ASSESSEE BY : MS.URVASHI SHODHAN + 2 3 ) / REVENUE BY : SHRI M.K. SINGH SR.DR 5 2 &(* / DATE OF HEARING : 16 TH SEPTEMBER 2014 678 2 &(* / DATE OF PRONOUNCEMENT : 03/11/2014 )9 / O R D E R PER G.C. GUPTA VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 2004-2005 IS DIRECTED AGAINST THE OR DER OF THE CIT(A). 2. THIS APPEAL IS BARRED BY LIMITATION BY 50 DAYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY AND HAS ALSO FILED AFFIDAVIT OF THE ACCOUNTANT OF THE ASSESSEE TO THE EFFECT THAT INADVERTENTLY HE HAS MISPLACED THE ORDER OF THE CIT(A) IN THE OFFICE AN D THE SAME COULD NOT BE PASSED OVER TO ITS CHARTERED ACCOUNTANT/ADVOCATE BA SED AT AHMEDABAD IN ITA NO.1476/AHD/2011 -2- TIME FOR FILING APPEAL BEFORE THE TRIBUNAL. IT WAS FURTHER STATED THAT AS SOON AS THE ORDER WAS LOCATED THE SAME WAS SENT TO THE OFFICE OF THE CHARTERED ACCOUNTANT/ADVOCATE AT AHMEDABAD FOR FILI NG APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE MISTAKE OF THE ACCOUNTANT WAS INADVERTENT AND MAY B E CONDONED. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARN ED COUNSEL FOR THE ASSESSEE. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS REGARDING T HE ISSUE OF CONDONATION OF DELAY IN FILING THE APPEAL BEFORE TH E TRIBUNAL. IN THE FACTS OF THE CASE AND IN VIEW OF THE CONTENTS OF DULY SWO RN AFFIDAVIT OF THE ACCOUNTANT WE ARE OF THE VIEW THAT IT IS A FIT CAS E FOR CONDONATION OF DELAY OF 50 DAYS IN FILING THE PRESENT APPEAL BEFORE THE TRIBUNAL AND WE DIRECT ACCORDINGLY. 4. THE ONLY EFFECTIVE GROUND OF THE APPEAL OF THE A SSESSEE IS GROUND NO.1 WHICH IS REPRODUCED HEREINBELOW: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD.AO IN LEVYING PENALTY O F RS.1 35 060/- U/S.271(1)(C) OF THE ACT WHICH IS WHOLLY UNSUSTAIN ABLE IN LAW AND ON FACTS AND AS SUCH THE APPELLANT COULD NOT BE CHARGE D WITH ANY GUILT OF FURNISHING INACCURATE PARTICULARS OF INCOME OR C ONCEALING PARTICULARS OF INCOME WITHIN MISCHIEF OF SECTION 27 1(1)(C) OF THE ACT. THE LEVY OF PENALTY BEING WITHOUT JURISDICTION AND TOTALLY UNCALLED FOR DESERVES TO BE QUASHED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT ASSESSEE HAS INCURRED A NET LOSS OF RS.3.54 LAKHS FROM SHARE SPE CULATION ACTIVITY AND HAS SHOWN A NET PROFIT OF RS.9.77 LAKHS FROM SHORT TERM SHARE PROFIT ACCOUNT. THE CLAIM OF THE ASSESSEE FOR SPECULATION LOSS OF R S.3.54 LAKHS AGAINST THE SHORT TERM SHARE PROFIT INCOME BEING INADMISSIBLE WAS DISALLOWED BY THE ITA NO.1476/AHD/2011 -3- AO AND ON THIS AMOUNT THE AO HAS LEVIED PENALTY U NDER SECTION 271(1)(C) OF THE ACT. SHE SUBMITTED THAT ALL THE M ATERIAL FACTS WERE DISCLOSED AT THE TIME OF ASSESSMENT ITSELF AND IN T HE RETURN OF INCOME FILED BEFORE THE AO AND THE ASSESSEES BONA FIDE MISTAKE OF CLAIMING SET OFF OF SPECULATION LOSS AGAINST THE SHORT TERM SHARE PROFI T INCOME DOES NOT WARRANT THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARN ED COUNSEL FOR THE ASSESSE. HE SUBMITTED THAT THE ASSESSEE COULD NOT PROVE BY LEADING EVIDENCE THAT IT WAS A BONA FIDE MISTAKE IN CLAIMING THE SPECULATION LOSS AGAINST THE SHORT TERM SHARE PROFIT OF THE ASSESSEE . HE SUBMITTED THAT HAD THE CASE NOT BEEN PICKED UP UNDER SCRUTINY ASSESSME NT THE ASSESSEE COULD HAVE BEEN ASSESSED AT A LESSER FIGURE THAN ASSESSAB LE AS PER THE LAW. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY AND HAVE PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT BASIC FACTS OF THE CASE ARE NOT IN DISPUTE. THE ASSESSEE HAS SHOWN ALL THE MATERIAL FACTS RELEVANT FOR THE ASSESSMENT IN THE RETURN OF INCOME FILED AT THE ASSESSMENT STAGE BEFORE THE AO. THERE IS NO MATERIAL BROUGHT ON REC ORD ON BEHALF OF THE REVENUE TO SUGGEST THAT THE CONDUCT OF THE ASSESSEE IN CLAIMING THE SHARE SPECULATION LOSS AGAINST SHORT TERM SHARE PROFIT IN COME WAS NOT BONA FIDE . ARGUMENTS OF THE REVENUE THAT HAD THE CASE NOT BEEN SELECTED FOR SCRUTINY ASSESSMENT THE ASSESSEE WOULD HAVE BEEN ASSESSED A T A LESSER FIGURE THAN ASSESSABLE AS PER THE LAW IS NOT SUSTAINABLE IN LA W. IT IS FOR THE DEPARTMENT TO SELECT A CASE FOR SCRUTINY OR TO ACCEPT THE RETU RN OF INCOME IN A SUMMARY MANNER. THE ASSESSEE IN THIS CASE HAS DISCLOSED AL L ITS INCOME IN THE RETURN OF INCOME FILED AND MERELY BECAUSE INADVERTENTLY IT HAS SET OFF SPECULATION LOSS AGAINST SOME TAXABLE SHORT TERM CA PITAL GAINS INCOME IT COULD NOT BE SAID THAT THE ASSESSEE SHOULD ALSO BE PENALIZED FOR CONCEALMENT OF INCOME OR FILING OF INACCURATE PARTI CULARS OF INCOME. THE ITA NO.1476/AHD/2011 -4- ASSESSEE HAS FILED AN EXPLANATION WHICH SEEMS TO BE BONA FIDE . IT IS NOT A CASE WHERE THE ASSESSEE HAS NOT DISCLOSED ANY MATER IAL FACTS RELEVANT TO ITS ASSESSMENT. IN THESE FACTS OF THE CASE WE ARE OF THE VIEW THAT IT IS NOT A CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT WHICH IS ACCORDINGLY CANCELLED AND THE GROUND OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD