DCIT CC 12, MUMBAI v. ARVIND M. KARIYA, MUMBAI

ITA 443/MUM/2012 | 2005-2006
Pronouncement Date: 10-07-2013 | Result: Dismissed

Appeal Details

RSA Number 44319914 RSA 2012
Assessee PAN AAEPK0468L
Bench Mumbai
Appeal Number ITA 443/MUM/2012
Duration Of Justice 1 year(s) 5 month(s) 20 day(s)
Appellant DCIT CC 12, MUMBAI
Respondent ARVIND M. KARIYA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 10-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 10-07-2013
Date Of Final Hearing 02-07-2013
Next Hearing Date 02-07-2013
Assessment Year 2005-2006
Appeal Filed On 20-01-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER AND SHRI VIVEK VARMA JUDICIAL MEMBER ITA NO. 443/MUM/12 ASSESSMENT YEAR : 05-06 DCIT CENTRAL CIRCLE - 12 ROOM NO.803 8 TH FLOOR OLD CGO BUILDING(ANNEX) M.K. ROAD MUMBAI-400 020. VS. SHRI ARVIND M. KARIYA A-402 JAY APARTMENT NEHRU ROAD SANTACRUZ(E) MUMBAI-400 055. PAN NO.AAEPK 0468 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MS. FORUM MEHTA REVENUE BY : SHRI SURINDER JIT SINGH DATE OF HEARING : 02.07.2013 DATE OF PRONOUNCEMENT : 10. 07.2013 O R D E R PER B. RAMAKOTAIAH AM: THIS APPEAL BY REVENUE IS AGAINST THE ORDER OF CIT( A)-32 MUMBAI DATED 10.10.2011 DELETING THE PENALTY UNDER SECTION 271(1)(C) OF RS.7 42 082/- LEVIED BY THE AO. 2. THE ISSUE IN THE QUANTUM PROCEEDINGS WAS WITH RE FERENCE TO CLAIM OF CAPITAL GAIN WHICH THE AO TREATED AS BOGUS CAPIT AL GAIN. AFTER THE SAME WAS CONFIRMED BY CIT(A) THE AO LEVIED PENALTY UNDE R SECTION 271(1)(C). IN THE APPEAL AGAINST THE SAID ORDER THE LD. CIT(A) EXAMINED THE ISSUE ON MERITS AND CAME TO THE CONCLUSION THAT THE FACTS OF THE CASE DOES NOT WARRANT ANY PENALTY UNDER SECTION 271(1)(C) ON THE REASON THAT IN SIMILAR ITA NO.443/MUM/12 A.Y.05-06 ARVIND M. KARIA 2 CASES ITAT HAS GIVEN DECISION IN FAVOUR OF THE ASSE SSEES THAT THE CAPITAL GAIN WAS GENUINE. LD.CIT(A) ALSO RELIED ON THE PRIN CIPLES LAID DOWN IN VARIOUS CASE LAW. THE REVENUE IS AGGRIEVED. 3. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE PLACED ON RECORD THE ORDERS OF ITAT FOR ASSESSMENT YEAR 2005-06 WHEREIN ASSESSEES APPEAL IN ITA NO.787/MUM/2010 WAS DISPOSED OFF VIDE ORDER DAT ED 30.12.2011. IT WAS SUBMITTED THAT THE ADDITION MADE BY THE AO STAN DS DELETED AND ACCORDINGLY THERE IS NO NEED FOR LEVY OF PENALTY. 3.1 THE LD. DR SUBMITTED THAT SIMILAR ADDITION MADE IN ASSESSMENT YEAR 2006-07 WAS CONFIRMED BY ITAT AND ON THAT BASI S THE REVENUE INTENDS TO MOVE A MISCELLANEOUS APPLICATION (MA) AG AINST THE ORDER OF ITAT AND THEREFORE HE REQUESTED FOR KEEPING THE MA TTER ALIVE BY CONFIRMING THE PENALTY. THE LD. COUNSEL IN REPLY SU BMITTED THAT THE FACTS IN THIS YEAR ARE ENTIRELY DIFFERENT FROM THAT IN AS SESSMENT YEAR 2006-07 AND EVEN OTHERWISE SINCE CIT(A) DECIDED THE ISSUE ON MERITS AND QUANTUM WAS ALSO DELETED THERE IS NO MERIT IN THE C ONTENTIONS RAISED. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND EXA MINED THE RECORD. LD. CIT(A) AFTER CONSIDERING THE FACTS OF THE CASE AND LAW ON THE ISSUE CAME TO A CONCLUSION THAT THE ACTION OF THE AO IN T REATING THE CAPITAL GAINS OFFERED BY THE ASSESSEE AS BOGUS IS A DEBATAB LE ISSUE AND ACCORDINGLY IT DOES NOT WARRANT ANY PENALTY UNDER S ECTION 271(1)(C). HE ALSO RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS (371 ITR 158). WE DO NOT SEE ANY REASON TO DIFFER FROM THE FINDINGS OF THE CIT(A). EVEN OTHERWISE IN THE QUANTUM PROCEEDINGS ADDITION MADE BY THE AO WAS NOT SUSTAIN ED AND ASSESSEE GOT RELIEF. FOR THAT REASON ALSO THE ORDER OF CIT( A) REQUIRES CONFIRMATION. 4.1 HOWEVER IN CASE THE QUANTUM ORDER OF ITAT IS R EVERSED AT A LATER POINT OF TIME BY ENTERTAINING THE MISCELLANEOUS APP LICATION WHICH IS YET ITA NO.443/MUM/12 A.Y.05-06 ARVIND M. KARIA 3 TO BE FILED BY THE REVENUE THEN THE REVENUE IS FRE E TO FILE ANOTHER MISCELLANEOUS APPLICATION AGAINST THIS ORDER FOR CO NSIDERING THE SAME ON MERITS AT THAT POINT OF TIME. SINCE THE LD. DR WIT HOUT EVEN FILING THE MISCELLANEOUS APPLICATION WANTED THE CASE TO BE DEC IDED IN FAVOUR OF THE REVENUE WE HAVE OBSERVED AS ABOVE. AT PRESENT THER E IS NO MERIT IN THE REVENUE APPEAL AND ACCORDINGLY THE SAME IS DISMISSE D. 5. IN THE RESULT REVENUE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY 2013. SD/- SD/- (VIVEK VARMA ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI DATED: 10 TH JULY 2013. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.