Prakash Mangilal Jain, Mumbai vs Assessee

आयकर अपील य अ धकरण, 'सी' खंडपीठ मुंबई INCOME TAX APPELLATE TRIBUNAL,MUMBAI - C -BENCH सव ी आय.पी. बंसल, या यक सद य एवं राजे , लेखा सद य Before S/Sh. I.P. Bansal, Judicial Member & Rajendra,Accountant Member आयकर अपील सं/.ITA No.4747/Mum/2012, नधारण वष/Assessment Year-2008-09 Prakash Mangilal Jain Dy. CIT th Flat No.4, 11 Floor Atur Terrace Circle-12(2) Cuffe Parade, Colaba.Mumbai-5 Vs Mumbai-400 020.

PAN:ADEPJ 9859 M (अपीलाथ /Appellant) ( यथ / Respondent) नधा रती ओर से/Assessee by : Shri Rakesh Joshi राज व क ओर से/ Revenue by :Shri Parmanand J. सन ु वाई क तार ख/ Date of Hearing :30- 04 -2015 घोषणा क तार ख / Date of Pronouncement :08-05-2015 आयकर अ ध नयम,1961 क धारा 254(1)के अ तगत आदे श Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद य राजे के अनुसार PER RAJENDRA, AM-

Challenging the order dated 10/5/12of the CIT(A)-23,Mumbai,assessee has raised following Grounds of Appeal:

On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in levying a penalty of Rs.98,41,888/- u/s.271(1)(c) of the Income Tax Act' 1961, without considering the facts a circumstances of the case.

2.On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of the Learned Assessing Officer in levying a penalty u/s.271(1)(c) of the Income Tax Act' 1961 on the issue of STCG declared as LTCG by not following the FIFO method, without considering the fact that merely change of head does not attract the penalty u/s. 271 (1 )(c) of the I. T. Act, 1961.

3.On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in levying a penalty u/s.271(1)(c) of the Income Tax Act' 1961 on the issue of addition made on account of notional rent without appreciating the fact that the penalty cannot be imposed on the addition made on estimated basis.

4.On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in levying a penalty u/s.271(1)(c) of the Income Tax Act' 1961 on the issue of addition made on account of Dividend stripping without considering the fact that issue of Dividend stripping is a debatable issue which is a difference of opinion matter, therefore no penalty is imposed on the same.

5.The appellant craves leave to add, amend, alter or delete the said grounds of appeal.

2.Assessee-an individual, is deriving income from various sources. He filed its return of income on 30/9/2008,declaring total income of Rs.6.31 lacs and current year's loss of 89.04 lacs. The AO completed the assessment u/s.143(3) of the Act,on 28.12.2010,determining the income of the assessee at Rs.1,16,51,450/-.During the assessment proceedings,the AO held that the assessee had earned Short Term Capital Gain(STCG) of Rs.2.75 crores and Long Term Capital Gain 1 4747/12 (08-09) Prakash M

(LTCG) of Rs.1.55 crores as against the returned STCG of Rs.1.55 crores and LTCG of Rs.2.75 crores, that the assessee had shown LTCG on sale of 7500 shares of L&T, that he had also shown STCG on sale of L&T shares, that no FIFO method was followed for computing capital gain, that a part of STCG was included in LTCG.The AO revised the working of capital gains following FIFO method and entire income from STCG and LTCG, amounting to 4.30 crores (Rs.2.75 crores + Rs.1.55 crores) was treated as business income.The AO further held that the assessee had not declared any income from house property,in respect of flats located at Colaba, and Nasik,which worked at Rs.1,29,375 and Rs.3,326/- respectively. He allowed deduction @ 30% of Annual Value and made addition of Rs.92,891/- to the total income of the assessee.The AO also found that the assessee had received dividend of Rs.11.01 lacs, that same was claimed as exempt from tax and had declared Short Term Capital Loss on sale of shares. He directed the assessee to furnish detail of share transaction.After considering the details,he held that the dividend received worked out to Rs.56,500/-.He disallowed the same u/s. 94(7) & 94(8) of the Act and reduced the capital loss by Rs.56,500/-.Besides,the amount in question was added to the total income of the assessee.Considering the above facts the AO,vide his notice dt.28/12/2010 issued u/s.271 (1)(c)r.w.s.

274 of the Act,directed the assessee to show cause as to why penalty for concealing/filing of inaccurate particulars of income should not be levied. The assessee argued that he had reported all the income earned, that there was no concealment of income, that the observation of not following FIFO was arbitrary, that there was no proper basis to establish the fact to treat the LTCG and STCG as business income,that there was difference of opinion about heads of income, that concealment penalty could not be levied in such cases. The assessee placed reliance on the case of Reliance Petroproducts (322ITR158),delivered by the Hon'ble Apex Court. As regards initiation of penalty proceedings for not showing the notional rent on properties,held by the assessee other than self occupied property, the assessee argued that all the properties were self-occupied for purpose of his family, his parents' use or for the purpose of his business,that there was difference of opinion so the AO should not have initiated penalty proceedings about the said addition.However,the AO did not agree with the assessee and vide his order dt.29/6/07 levied penalty of Rs.98,41,888/-.

3.Aggrieved by the order of the AO,the assessee preferred an appeal before the First Appellate Authority(FAA).Before her,it was submitted that assessee had purchased shares with the intention of earning profit from the sale of shares, that there was no intention to earn profit by trading in shares,that the assessee had a bona fide belief and had accordingly disclosed income under the head capital gain depending on period of holding,that he had shown shares as investment in the and not as stock-in-trade in the balance sheet,that he had not concealed particulars of his income nor had furnished inaccurate particulars, that taxability of income under a particular head-capital gain or business income-was a disputable matter, that he had invested the amount in shares and therefore had shown income as capital gain, that mere change of head of income was case of honest difference of opinion between assessee and the AO, that the assessee had disclosed income from share under the head capital gains in the preceding year and same was accepted by the AO, that under a bonafide belief he had offered said income as a capital gain.As regards addition made on account of notional rent of Rs.92,891/- it was contended that the assessee owned three flats, that 2 flats were located at Colaba and one at Nasik,that out of two flats at Colaba one was occupied by him and the other was occupied by his parents,that both the flats were self occupied,that the flat at Nasik was used for business purposes,that the assessee had not disclosed any rental income from the flats, that considering the smallness of the addition he did not prefer an appeal against the quantum addition.With regard to disallowance on account of dividends stripping of Rs.56,500/- it was argued that it was a technical matter,that there was a difference of opinion about the issue, that dividend income as 2 4747/12 (08-09) Prakash M

well as the loss from shares was disclosed by the assessee in his return of income, that assessee had not concealed particulars of his income.

After considering the submissions of the assessee and the penalty order,the FAA held that the assessee had sought to reduce his tax liability by declaring transaction in L&T scrips as LTCG, that some of them were actually taxable as STCG,that the assessee had not used the FIFO method, that the assessee's action was not bonafide, that he had claimed his income to be exempt whereas the same was chargeable as STCG @ 10% if STT had been paid. The FAA confirmed the levy of penalty on the basis of the addition made by the AO under the head STCG/LTCG. She further held that no penalty could be levied for declaring the profit on sale of shares under a particular head.With regard to income from house properties,the FAA held that as per law he could claim only one property as exempt being SOP, that the assessee had claimed all the three properties as SOP,that the claim made by the assessee was not bonafide, that it was not a debatable issue where two views were possible or where there was a difference of opinion,that the AO has rightly levied penalty for the addition made in that regard. For the addition made u/s. 94(7) & 94(8) of the Act the FAA held that capital loss was reduced by Rs.56500/-, that claim made by the assessee was not bonafide, that penalty levied by the AO was justifiable, that had not the case been picked for scrutiny the assessee would have got away with making untenable and unsustainable claims.Finally,the FAA upheld the action of the AO in levying penalty u/s. 271(1)(c) except to the extent mentioned in respect of treatment of declared capital gains as business.

4.During the course of hearing before us,Authorised Representative (AR) contended that the assessee had not challenged the quantum additions, that it had requested for rebate u/s.88E of the Act, that in the earlier years profit from share transaction was taxed under the head capital gains, that there was change in heads of income, that assessee had not concealed particulars of income, that details of house properties owned by the assessee were made available to the AO. He relied upon the cases of Anant Overseas Pvt.ltd. (90 CCH 084) of Hon'ble Delhi High Court, Amit Jain (351ITR74) and Walter Saldahna(44 SOT 26).Departmental Representative(DR) relied upon the order of the FAA

5.We have heard the rival submissions and perused the material before us.We find that the AO had made additions on three counts share transactions,House property income and dividend stripping,that the AO had levied penalty u/s.271(1)(c)of the Act for concealing the particulars of income,that the assessee did not contest additions made by the AO,that the FAA had confirmed the penalty order of the AO.

We would like to take up the issue one by one with regard to the additions made and penalty levied.The assessee had shown the income from share transaction under the head capital gains whereas the assessee AO was of the opinion that same had to be taxed under the head business head.It is a fact that in the earlier year,income from share transaction was accepted by the AO under the head capital gains.The FAA held that mere change of head could not result levy in penalty.But,in her opinion,by not following the FIFO method the assessee had made himself liable for levying concealment proceedings.We are of the opinion that following FIFO or LIFO method cannot be the basis for levying penalty as per the provisions of section 271(1)(c)of the Act.In order to justify the levy of penalty,two factors must co-exist, (i) there must be some material or circumstances leading to the reasonable conclusion that the amount does represent the assessee's income and the amount in question was disclosed by the assessee in his return. Explanation filed by the assessee,about the disputed amount plays a vital role in deciding the justification of levying concealment penalty.In the matter before us,the assessee had disclosed all the necessary details.In our opinion,explanation filed by the assessee in that regard was bona 3 4747/12 (08-09) Prakash M

fide.Secondly, it is an accepted principle of taxation jurisprudence that additions made during assessment proceedings cannot result in automatic levy of penalty.Therefore,we delete the penalty confirmed by the FAA with regard to share transactions. We find that the assessee had claimed that all the three house properties were his SOPs and he had made a justifiable claim in that regard.In our opinion,the provisions of the Act dealing with SOP are very clear and unambiguous and they stipulate that the assessee cannot claim SOP deduction for more than one property.In the return filed by the assessee,he had claimed that all the three properties were to be treated as self occupied.In the explanation it was stated that in one of the properties his parents were residing and the property at Nasik was used for business purposes.In our opinion, explanation of the assessee for including the income from the properties cannot be treated a bona fide explanation. A patent wrong and inadmissible claim,made against the clear cut provisions of the Act,falls under the category of filing of inaccurate particulars of income resulting in concealment.Had the return not been picked up for scrutiny the assessee would be taken benefit of the provision even though he was not entitled for it.In these circumstances,we are of the opinion,that the order of the FAA,does not suffer from any legal infirmity.We uphold her order to that exent.As far as dividend stripping is concerned, we find that the Tribunal in the case of has dealt the identical issue and has decided the issue in favour of the assessee in the case of Walter Saldanah (supra).We would like to reproduce the relevant portion of the order and same reads as under:

"On perusal of the orders of Revenue authorities, it is found that the penalty under s. 271 (1)(c) was levied on the ground that the assessee violated of provisions of s. 94(7) by not ignoring losses while computing short-term capital gains on transactions related to s. 94(7). It is important to state here that the AO made the addition only on the basis of material and informations furnished by the assessee. But in the case under consideration the assessee has furnished full detail and has not concealed any particulars of income or has furnished any inaccurate particular of income. Further, it is noticed that there were no such specific requirements in the return form applicable to the year under consideration. Such requirement of the column in the return has been inserted by amendment in return form, ITR 6, at p. 17, "Sch. CG capital gain" S. No. 3 (d) which is applicable from asst. yr. 2007-08. A mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars. The assessee demonstrated that their claim was bonafide claim. In the light of above discussion, the case under consideration is not found to be a fit case for levy penalty under s. 271(1)(c), therefore the penalty levied is cancelled."

Following the above order,we reverse the order of the FAA in respect of dividend stripping.Effective ground of appeal is decided in favour of the assessee,in part.

As a result, appeal filed by the assessee stands partly allowed.

फलतः नधा रती वारा दा खल क गई अपील अंशतः मंजूर क जाती है . Order pronounced in the open court on 08th, May, 2015. आदे श क घोषणा खुले यायालय म दनांक 08th मई,2015 को क गई । Sd/- Sd/- (आय.पी. बंसल /I.P. BANSAL) (राजे / RAJENDRA) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER मबुं ई/Mumbai, दनांक/Date: 08.05.2015 Jv. Sr.PS आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1.Appellant /अपीलाथ 2. Respondent / यथ

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3.The concerned CIT(A)/संब ध अपील य आयकर आयु त, 4.The concerned CIT /संब ध आयकर आयु त

5.DR "A" Bench, ITAT, Mumbai / वभागीय त न ध, खंडपीठ,आ.अ. याया.मब ंु ई

6.Guard File/गाड फाईल स या पत त //True Copy// आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपील य अ धकरण, मब ंु ई /ITAT, Mumbai.

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