Sarala M. Maheshwari, Mumbai vs Assessee

आयकर अपील य अ धकरण, मुंबई यायपीठ "ई" मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL" E" BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) सव ी बी.आर.बा करन, लेखा सद य एवं अ मत शु ला, या यक सद य के सम

आयकर अपील सं./I.T.A. No.7978/Mum/2011 ( नधारण वष / Assessment Year :2004-05)

Smt.Sarala M Maheshwari, बनाम/ Income Tax Officer - 16(2)(1), 36, L Jagmahandas Marg, Vs. Matru Mandir, Mumbai-400036 2nd floor, Tardeo Road, Mumbai-400007 (अपीलाथ /Appellant) .. ( यथ / Respondent)

थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. :AALPM2716Q

अपीलाथ ओर से / Assessees by Shri Haresh G Buch यथ क ओर से/Revenue by Shri Love Kumar

सुनवाई क तार ख / Date of Hearing : 20.4.2015 घोषणा क तार ख /Date of Pronouncement : 24. 4.2015

आदे श / O R D E R

PER B.R. BASKARAN (AM)

The appeal filed by the assessee is directed against the order dated 19.9.2011 passed by Ld CIT(A)-27, Mumbai confirming the penalty of Rs.15,48,555/- levied by the AO u/s 271(1)(c) of the Income Tax Act, 1961.

2. We have heard the parties and perused the record. The facts relating to the issue are that the assessee had invested in Unit Scheme 1964 of Unit Trust of India (UTI) in the year 1999, which was a specified capital asset prescribed in 54EA of the Act. Hence the said investment had locking period of three years. Subsequently, the UTI underwent a restructuring and as a result of which Unit Scheme, 1964 was terminated 2 I T A N o . 7 9 7 8 / Mu m / 2 0 1 1

with effect from 1.6.2003. Accordingly, the assessee's right in the aforesaid units extinguished w.e.f. 1.6.2003 and in lieu of the same, the assessee was allotted 6.75% tax free US 64 bonds. In view of the swapping of the investment, the assessee incurred a loss and the assessee claimed the same as Long Term Capital Loss arising on transfer units of Unit 64 scheme. In the assessment proceedings, the AO noticed that the income arising of transfer of units of "Unit 1964" scheme is exempt from tax u/s 10(33) of the Act and accordingly, the AO held that loss incurred by assessee on transfer of Unit 64 units cannot be set off or allowed to be carried forward. Accordingly, he disallowed the said claim for set off and carry forward of the loss arising on transfer of Unit 64 units. The AO also levied penalty u/s 271(1)(c) of the Act on the above said disallowance and the same was also confirmed by the ld. CIT(A). Aggrieved, the assessee has filed this appeal before us.

3. Before us, the assessee placed reliance on the decision rendered by Hon'ble jurisdictional High Court of Bombay in the case of CIT Vs. Nalin P Shah (2013)(40 taxmann.com 86), wherein the penalty levied under identical disallowance made was deleted by the High Court on the reasoning that the assessee had furnished all the details relating to the claim and there was no furnishing of inaccurate particulars or concealment of income. In the instant case also, the assessee has furnished all the details relating to the claim of loss arising from sale of Unit 64 scheme units. Though the assessing officer has levied the penalty on the ground that the assessee has furnished inaccurate particulars of income, yet he did not substantiate his view with material. Hence, in our view, it is not a case of furnishing of inaccurate particulars of income. Accordingly, we are of the view that the decision rendered by the Hon'ble jurisdictional Bombay High Court in the case of Nalin P Shah (supra) is applicable to the 3 I T A N o . 7 9 7 8 / Mu m / 2 0 1 1

facts prevailing in the instant case. By following the same, we set aside the order of Ld CIT(A) and direct the AO to delete the impugned penalty.

4. In the result, the appeal filed by the assessee is allowed.

The above order was pronounced in the open court on 24th Apr, 2015.

घोषणा खल ु े यायालय म दनांकः 24th Apr, 2015 को क गई ।

Sd sd (अ मत शु ला / AMIT SHUKLA) (बी.आर.बा करन / B.R. BASKARAN) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER

मुंबई Mumbai: 24th Apr,2015.

व. न.स./ SRL , Sr. PS

आदे श क त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. आयकर आयु त(अपील) / The CIT(A)- concerned

4. आयकर आयु त / CIT concerned

5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai concerned

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER,

True copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai