ASHOK M JAIN,NAVI MUMBAI vs. ACIT 22(3), NAVI MUMBAI

आदेश / O R D E R

PER RAVISH SOOD, JM:

“(1).On facts and circumstances of the case and in law Ld. CIT(A) erred in relying on decision of CIT vs. Multiplan India Pvt. Ltd. 38 ITD (Delhi) and other decisions for dismissal of appeal for want of persuasion of appeal without appreciating the fact that appellant was not served notice of hearing.

(2).On facts and circumstances of the case and in law Ld. CIT(A) erred in confirming concealment penalty us 271(1)(c) of Rs.6,63,360/- without appreciating the facts that appellant has neither concealed any income nor furnished inaccurate particulars of income.

(3).On facts and circumstances of the case and in law Ld. CIT(A) erred in relying on decision in case of CIT Vs. Zoom Communication (Pvt.) Ltd.(2010) 327 ITR 310/191 Taxman 179 (Delhi) which is distinguishable on the facts.

(4). On facts and circumstances of the case and in law Ld. CIT(A) erred in concluding that appellant has filed return of income dishonestly with a view to escape tax liability without appreciating the fact that MCX Stock

Exchange was recognized exchange at the time of filing return even otherwise notification 46/2009 dated 22.05.2009 has retrospective effect from 01.04.2006 being procedural in nature, reliance is placed on decision in case of ACIT vs. Arnav A Mehta ITAT Mumbai Bench A decision dated 12.09.2012.

(5).On facts and circumstances of the case and in law Ld. CIT(A) erred in not following the ratio of decision of Reliance Petro Products (2010) which is squarely applicable to the present facts of the case as appellant has disclosed all particulars of income and no fact has been concealed.

(6). On facts and circumstances of the case and in law Ld. CIT (A) erred in confirming penalty u/s.271(1)(C) without appreciating the facts that in return of income appellant has disclosed F & O and commodity transactions separately in P & L account and as such appellant has disclosed all particulars of income.

The appellant craves, to consider each of the above ground of appeal without prejudice to each other and craves leave to add, alter, delete or modify all or any of the above grounds of appeal.”

2. Briefly stated, the facts of the case are that the assessee who is engaged in the business of manufacturing of PVC profile, F&O trading in shares and trading of commodities through MCX exchange had filed his return of income declaring total income of Rs.38,38,583/- on 28.12.2009. The case of the assessee was taken up for scrutiny proceedings u/s. 143(2) of the ‘Act’. That during the course of the scrutiny proceedings the A.O being of the view that the loss of Rs.18,92,790/- reflected by the assessee from trading of commodities through MCX exchange, being in the nature of a Speculation loss had thus wrongly been set off by the assessee against his business income, therefore added back the same to the latters returned income. The A.O further while culminating the assessment proceedings initiated penalty proceedings u/s 271(1)(c) as regards the aforesaid addition of Rs, 18,92,790/-(supra).

3. The A.O thereafter in the course of the penalty proceedings being of the view that the assessee by wrongly claiming the set off of the loss of Rs.18,92,790/- of trading of commodities through MCX exchange against its business income, had thus furnished wrong particulars in its return of income, therein imposed a penalty of Rs.6,43,360/- u/s. 271(1)(c). The assessee assailed the order of the A.O imposing penalty u/s 271(1)(c) before the CIT(A), who sustained the same and dismissed the appeal of the assessee.

5. That during the course of the hearing of the appeal the ld. ‘A.R’ adverting to the merits of the case therein submitted that the quantum addition of Rs.18,92,790/- made by the A.O by holding that the loss suffered by the assessee from trading of commodities at MCX exchange, being in the nature of a speculation loss was not entitled to be set off against the business income of the assessee, had been set aside by the CIT(A) vide his order dated 01.06.2015 passed in appeal no. CIT(A)-26, IT/64/14-15/1 (copy placed on record), wherein the said first appellate authority had directed the A.O to treat the loss of Rs.18,92,790/- (supra) as a business loss and allow set off of the same against the business income of the assessee. It was further submitted by the Ld. A.R that the appeal of the department against the aforesaid order of the CIT(A) had attained finality, as the Tribunal going by the CBDT Circular No. 21/2015, dated 10.12.2015 had dismissed the appeal of the revenue as the total ‘tax demand’ involved therein was below the prescribed limit of Rs.10 lakhs. Thus, in the backdrop of the aforesaid facts it was submitted by the ld. A.R that now when the quantum addition stood finally deleted on merits, therefore the order of the CIT(A) sustaining the penalty imposed by the A.O u/s 271(1)(c) does not survive and was liable to be struck down. That on the other hand the Ld. Departmental Representatives (for short ‘D.R’) though acceded to the aforesaid factual position, but averred that as penalty proceeding are separate and distinct from the assessment proceedings, therefore merely on the count that the quantum addition made by the AO had been deleted in appeal, the penalty imposed in the hands of the assessee was not liable to be automatically set aside.

Order pronounced in the open Court as on 28.02.2017