No AI summary yet for this case.
Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.02/CTK/2013 Assessment Year : 2006-07
Jagdish Lal Gugnani, N-3, Vs. ITO, Ward-2(1), 397, IRC village, Nayapali, Bhubaneswar. Bhubaneswar. PAN/GIR No. ABHPG 1121 A (Appellant) .. ( Respondent)
Assessee by : Shri C.Parida, AR Revenue by : Shri D.K.Pradhan, DR
Date of Hearing : 17/05/ 2017 Date of Pronouncement : 17 /05/ 2017
O R D E R Per Pavan Kumar Gadale, JM This is an appeal filed by the assessee against the order of CIT(A)-II,
Bhubaneswar, dated 19.10.2012, for the assessment year 2006-07.
The only substantive ground raised by the assessee in this appeal is
that the CIT(A) erred in confirming the action of the Assessing Officer in
levying penalty of Rs.1,23,796/- u/s. 271(1)(c) of the Income tax Act,
1961.
Brief facts of the case are that the assessee is an individual derives
income from trading of shares & stocks and filed the return of income for
2 ITA No. 02/ CTK/2013 Asse ssment Year : 20 06- 07
the assessment year 2006-07 on 30.10.2006 disclosing total income of
Rs.97,447/-. The assessment was completed under section 143(3) on
30.12.2009 determining the total income at Rs.7,36,260/-. The Assessing
Officer while completing the assessment found that the assessee has
income from trading of shares as the proprietor of M/s. Indu Investment
and also reflected the purchase and sale of shares in the profit and loss
account and whereas in respect of clients, the assessee has disclosed the
commission in the profit and loss account . Both the incomes were reflected
by the assessee in a financial statement and the books of account are
audited u/s.44AB and Form 3CD have been obtained. As per the financial
statement, the assessee has transferred the profit to the capital account.
At the time of filing the income tax return, the income has been shown as
long term capital gain and short term capital gain whereas the assessee
has claimed exemption of long term capital gain u/s.10(38) and offered the
short term capital gain at a concessional rate of 10%. Whereas, as per
the opinion of the Assessing Officer, the assessee could not substantiate in
the assessment proceedings and in the penalty proceedings that the
assessee is maintaining separate books of account. The assessee filed a
detailed reply dated 2.12.2008 which are mentioned at pages 1 to 4 of
penalty order and relied on judicial decision. The Assessing Officer was not
satisfied with the explanation and distinguished the judicial decision and
held that there is clear cut concealment of income and furnishing of
inaccurate particulars by claiming exemption as long term capital gains and
short term capital gains from the share trading profit. He, therefore, levied
3 ITA No. 02/ CTK/2013 Asse ssment Year : 20 06- 07
penalty of Rs.1,23,800/- and passed order under section 271(1)(c) of the
Act.
Being aggrieved by the penalty order, the assessee has filed an
appeal before the CIT(A) whereas the CIT(A) has passed a consolidated
order alongwith other assessment yeas, wherein he has considered the
findings of the Assessing Officer in assessment proceedings and penalty
proceedings and submissions of the assessee and observed that the
assessee has maintained one set of books of account for the investment in
buying and selling in shares, and profit commission disclosed in the profit
and loss account and further the assessee’s intention of claiming long term
capital gains and short term capital gains was afterthought and was claimed
at the time of filing the return of income. With these observations, the
CIT(A) confirmed the action of the Assessing Officer.
Aggrieved by the order of the CIT(A), the assesse has filed appeal
before the Tribunal.
Before us, ld A.R. argued and reiterated the submissions made in the
appellate proceedings and explained that the assessee has been
maintaining system of accounting and books of accounts are audited
u/s.44AB of the Act and the Assessing Officer has levied penalty and the
same was confirmed, which is not in accordance with law and prayed for
allowing the appeal.
Contra, ld D.R. relied on the order of the CIT(A).
4 ITA No. 02/ CTK/2013 Asse ssment Year : 20 06- 07
We have heard the rival submissions and perused the orders of lower
authorities and materials available on record. The sole crux of the issue is
that the assessee deals in purchase and sale of shares on his behalf and
others. The fact that the assessee cannot have two set of books of account
for individual trading and for clients and the fact that in the assessment
order, it is clearly explained that the assessee has disclosed purchase and
sale of securities and income has been offered to tax and whereas the
commission income is shown in the profit and loss account and the
expenditure has been claimed in respect of business activity. The Assessing
Officer makes allegations that the assessee is not entitled for claiming of
exemption u/s.10(38) in respect of long term capital gain at a concessional
rate and wants to treat the entire income as business income. Prima facie,
the department could not prove on the facts that the assessee is indulging
in any activity of concealment of income or furnishing of inaccurate
particulars. We are satisfied that the assessee has given an exhaustive
explanation in the penalty proceedings, which has been reflected in the
penalty order and there is reasonable cause of disclosure which the CIT(A)
has overlooked. We are of the opinion that the assessee has not contested
the quantum appeal and accepted the addition to avoid litigation with the
income tax department and to buy peace. Further, as a principle every
addition cannot be a gateway for the Assessing Officer to levy the penalty.
The Assessing Officer has wide discretionary powers and has to consider
the reasonable cause before initiating the penalty proceedings. We also
support our view on the principles laid down by Hon’ble Karnataka High
5 ITA No. 02/ CTK/2013 Asse ssment Year : 20 06- 07
Court in the case of CIT vs Manjunatha Cotton and Ginning Factory,
reported in [2013] 359 ITR 565 (Kar), wherein, Their Lordships have held
that penalty cannot be levied on the addition in a general way and held as
under:
“Merely because the assessee agreed for addition and the assessment order was passed on the basis of this addition, when the assessee had paid the tax and the interest thereon in the absence of any material on record to show the concealment of income, it could not be inferred that the addition was on account of concealment. Moreover, the assessee had offered an explanation. The explanation was not found to be false. On the contrary, it was held to be bonafide. The cancellation of penalty by the Tribunal was justified.” 9. Considering the apparent facts and materials on record and judicial
decision, we are satisfied that there is a reasonable cause explained by the
assessee and there is no concealment of income or furnishing of inaccurate
particulars and accordingly set aside the order of the CIT(A) and direct the
Assessing Officer to delete the penalty of Rs.1,23,800/- levied under
section 271(1)(c) of the Act.
In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 17 /05/2017 in the presence of parties.
Sd/- sd/- (N.S Saini) (Pavan Kumar Gadale) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 17 /05/2017 B.K.Parida, SPS
6 ITA No. 02/ CTK/2013 Asse ssment Year : 20 06- 07
Copy of the Order forwarded to : 1. The Appellant : . Jagdish Lal Gugnani, N-3, 397, IRC village, Nayapali, Bhubaneswar. 2. The Respondent. ITO, Ward-2(1), Bhubaneswar. 3. The CIT(A)-II, Bhubaneswar 4. Pr.CIT, Bhubanswar. 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// BY ORDER,
SR.PRIVATE SECRETARY ITAT, Cuttack