ASST CIT 8(1)(2), MUMBAI vs. QUEST INVESTMENT ADVISORS P.LTD, MUMBAI

The present appeal has been preferred by the Revenue against the order dated 13.11.2014 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2008-09.

The Revenue is aggrieved by the action of the Ld. CIT(A) in deleting the penalty of Rs.29,92,860/- imposed by the Assessing Officer (hereinafter referred to as the AO) under section 271(1)(c) of the Income Tax Act, 1961.

The brief facts of the case are that during the course of assessment proceedings the AO observed that assessee’s income under the head ‘Capital gains’ was substantially higher than the income from professional receipts. The AO observed that certain expenditure which the assessee had claimed as 2 M/s. Quest Investment Advisors P. Ltd. business expenditure was in fact attributable to the earning of capital gains. He, therefore, proportionately disallowed a sum of Rs.88,05,120/- being the expenses attributable to the earning of short term capital gains. He also levied penalty under section 271(1)(c) of the Act in respect of the above disallowance which was computed at Rs.29,92,860/- being 100% of the tax amount sought to be evaded.

In appeal, the Ld. CIT(A) deleted the penalty so levied by the AO observing that the case of the assessee was not a case of furnishing of inaccurate particulars of income or concealment of income.

Before us, the Ld. A.R. at the outset, has invited our attention to the common order of the Tribunal dated 20.05.15 passed in and ITA No.866/M/2010 pertaining to assessment years 2007-08 and 2008-09 respectively. The Ld. A.R. has further stated that the impugned disallowance made by the AO in relation to the notionally allocated expenses to the capital gains has been deleted by the Tribunal. We have perused the para 13 of the said order of the Tribunal dated 20.05.15 (supra). The addition/disallowance made by the AO which was the basis for the levy of the impugned penalty under section 271(1)(c) of the Act has already been deleted by the Tribunal. Since the very basis upon which the penalty has been levied has ceased to exist, hence there are no legs for the impugned penalty to stand. The impugned penalty is therefore ordered to be deleted.

In the result, the appeal of the Revenue is hereby dismissed.