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Income Tax Appellate Tribunal, MUMBAI BENCH “I”, MUMBAI
Before: SHRI G.S.PANNU& SHRI AMARJIT SINGH.
ORDER PER G.S.PANNU, A.M: The captioned appeal filed by the Revenue pertaining to assessment year 2006-07 is directed against an order passed by CIT(A)- 12, Mumbai dated 12/06/2015 which in turn arises out of an order passed by the Assessing Officer under section 271(1)(c) of the Income Tax Act, 1961 (in short ‘the Act’) dated 30/03/2014.
In this appeal, the Revenue has raised the following Ground of appeal:-
“On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in annulling the penalty order under section 271(1)(c) on disallowance of short Term Capital Gain on sale of Units and shares treating as business income without appreciating the fact that the order of the Hon’ble ITAT quashing the assessment order under section. 143(3) has not been accepted by the department.”
The brief facts are that the respondent assessee is a company incorporated under the provisions of the Companies Act, 1956, and is, inter-alia, engaged in the business of trading of soya seed, soya oil and soya doc and also in the business of manufacturing and distribution of various commodities. In the assessment finalized under section 143(3) of the Act dated 8/12/2008. the Assessing Officer treated the gain declared by the assessee on sale of shares as business income as against short term capital gain declared by the assessee. Subsequently, the Assessing Officer held the assessee guilty of furnishing inaccurate particulars of such income within the meaning of section 271(1)(c) of the Act, thereby imposing a penalty of Rs.17,44,338/- . By way of the impugned order, the CIT(A) has deleted the penalty on the ground that the Tribunal vide its order in dated 26/6/2014 has quashed the assessment order dated 8/12/2008. Against such a decision, Revenue is in appeal before the Tribunal.
Before us, it was a common point between the parties that the order of the Tribunal dated 26/06/2014(supra) continues to hold the field and, therefore, no error can be found in the order of the CIT(A) deleting the penalty imposed under section 271(1)(c) of the Act as the assessment order giving rise to the addition itself does not survive Thus, on this aspect, the order of the CIT(A) is affirmed and Revenue fail in its appeal.