SUSHILKUMAR JAIN (HUF),MUMBAI vs. DCIT CIR 20(3),

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ITA 7605/MUM/2014Status: DisposedITAT Mumbai26 February 2018AY 2004-054 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that there was no justification for levying penalty under Section 271(1)(c) when the total income was not enhanced and the return was accepted. The change in the head of income alone, without any addition, does not warrant a penalty.

What were the facts?

The assessee offered capital gains in its return, which the AO reclassified as income from other sources. No addition was made to the total income, and the return was accepted as filed. The assessee paid the difference in tax due to the reclassification.

What were the issues?

Whether penalty under Section 271(1)(c) can be levied solely for a change in the head of income when there is no addition to total income and the return is accepted.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “E”, BENCH MUMBAI

Before: SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN, JM Shri Sushilkumar Jain (HUF)

For Appellant: Shri Haresh P Shah
For Respondent: Shri Suman Kumar
Hearing: 19/01/2018Pronounced: 26/02/2018

आदेश / O R D E R PER R.C.SHARMA (A.M):

1.

This is an appeal filed by assessee against the order of CIT(A)-31, Mumbai dated 31/10/2014 in the matter of penalty imposed u/s.271(1)(c) of the IT Act. 2. The following grounds have been taken by the assessee:-

1. The learned Deputy Commissioner of Income Tax erred in levying penalty u/s. 271(1)(C) for Rs.2,11,210/- and while doing so he amongst others failed to appreciate that the: a) The appellant had not concealed any particulars of its income; b) The appellant had not furnished any inaccurate particulars of its income; Shri Sushilkumar Jain c) The appellant had offered the income disclosed under the head 'capital gains' to be assessed as income under the head 'Other Sources' merely to buy peace and to avoid the protracted litigation that might ensue d) The appellant had disclosed truly and correctly the transaction of transfer of capital asset (shares of Buniyad Chemicals Ltd.), the delivery whereof was made from the demat account of the appellant.

3. Rival contentions have been heard and record perused.

4. Facts in brief are that assessee offered capital gain in its return of income, which was not accepted by the AO and he treated the same as income from other sources. However, there is no addition during the course of assessment. Return of income filed of Rs.13,61,970/- was accepted by the AO. The mere change made by the AO was under the head of ‘Income from Capital gain’ to ‘income from other sources’, difference between rate of tax was paid by the assessee during the course of assessment proceeding itself, by accepting the same, AO levied penalty for the same. We do not find any justification for the levy of penalty with respect to the change of ‘head of income, when there is no addition made during the course of assessment nor the total income of the assessee was changed and the return income was accepted as it is. Under these circumstances, we do not find any merit for the levy of penalty of Rs.2,11,210/- u/s.271(1)(c) of the IT Act. In the result, appeal of assessee is allowed. Order pronounced in the open court on this / /2018 Sd/- Sd/- (SANDEEP GOSAIN) (R.C.SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated / /2018 Karuna Sr.PS Shri Sushilkumar Jain Copy of the Order forwarded to : The Appellant

1. The Respondent. 2. The CIT(A), Mumbai. 3. CIT 4. DR, ITAT, Mumbai 5. BY ORDER,

6. Guard file. सत्यापित प्रतत //True Copy// (Asstt. Registrar) ITAT, Mumbai Initial Date 1. Draft dictated on 24/01/2018 Sr.PS 2. Draft placed before author 24/01/2018 Sr.PS (dictation pad has been enclosed herewith alongwith original file) 3. Draft proposed & placed before JM/AM the second member 4. Draft discussed/approved by JM/AM Second Member.

5.

Approved Draft comes to the Sr.PS/ Sr.PS/PS PS 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk.

10.

Date of dispatch of Order.

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