NARESH KUKREJA,MUMBAI vs. ITO 25(3)(1), MUMBAI

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ITA 1976/MUM/2016Status: DisposedITAT Mumbai27 November 2017AY 2009-103 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 noted that the quantum appeal concerning the capital gains had already been decided in favor of the assessee. Since the original addition was deleted, the penalty imposed on that addition had no basis.

What were the facts?

The assessee appealed against a penalty imposed under Section 271(1)(c) of the IT Act. The penalty was levied concerning the treatment of capital gains.

What were the issues?

Whether a penalty under Section 271(1)(c) can be sustained when the underlying addition giving rise to the penalty has been deleted in the quantum appeal.

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, “C”, BENCH MUMBAI

Before: SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM Shri Naresh Kukreja

For Appellant: Ms. Neha Paranjpe
For Respondent: Shri Rajesh Mittal
Hearing: 21/11/2017Pronounced: 27/11/2017

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

1.

This is an appeal filed by the assessee against the order of CIT(A) - 45, Mumbai dated 22/02/2016 for A.Y.2009-10, in the matter of imposition of penalty u/s.271(1)(c) of the IT Act.

2.

At the outset learned AR placed on record the order of the Tribunal in quantum appeal dated 13/09/2017 in wherein quantum was deleted by the Tribunal. It was contended by learned AR that since quantum has been deleted the penalty so imposed has no legs to stand.

3.

We have considered rival contentions and found that penalty u/s. 271(1)(c) was imposed with respect to decline of capital gain so offered Shri Naresh Kukreja by the assessee. We found that in the quantum appeal decided by the Tribunal vide order dated 13/09/201, assessee’s claim of long term capital gain was accepted and AO’s contention for treating the same as short term capital gain was declined.

4.

We found that penalty has been levied by the AO with respect to such treatment of short term capital gain and assessee’s contention has been accepted by the Tribunal at para 6,7 and 8.

5.

Learned DR fairly agreed that quantum addition has been deleted by the Tribunal.

6.

The conclusion of Tribunal is contained at para 8 which reads as under:- 8. In view of the above facts and circumstances, we are of the view from the intend and purpose of the agreement to sell deed 19-07- 2004 and subsequent cancellation dated 03-12-2008 that the parties never acted on the agreement and sale was never completed. Accordingly, we are of the view that the subsequent transfer effected by the assessee vide agreement dated 03-12-2008 for a sum of Rs. 75 lacs is to be considered as long term capital gain. In view of the above, we direct the AO to assess the capital gain as long term capital gain instead of short term capital gain for the entire property which is under dispute. We direct the AO accordingly. The appeal of the assessee is allowed.

7.

As the quantum itself has been deleted, the penalty so imposed has no legs to stand.

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