Income Tax Appellate Tribunal - Mumbai
Bermaco Energy Systems Ltd., Navi ... vs Dcit Cent. Cir. - 47, (Now Acit Cent. Cir. ... on 16 August, 2017
ITA No 4978/Mum/2016 Bermaco Energy Systems Limited Assessment Year 2011-12 आयकर अपीलीय अिधकरण "बी"
ायपीठ मुं बई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI ी डी.टी. गरािसया, ाियक सद एवं ी मनोज कुमार अ वाल, लेखा सद के सम । BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM आयकर अपील सं./I.T.A. No.4978/Mum/2016 (िनधा रण वष / Assessment Year: 2011-12) Ber ma co E ne rg y S yst e ms L i mit ed Assistant Commissioner D-73/1 of Income Tax TTC Industrial Area बनाम/ Central Circle 8(4) MIDC, Turbhe Vs. 6 t h Floor,Aaykar Bhavan Navi Mumbai M.K.Road Mumbai - 400 705 Mumbai -400 020 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACB-2727-N (अ पीलाथ# /Appellant) : ($%थ# / Respondent) Assessee by : J.P.Bairagra, Ld. AR Revenue by : T.A.Khan, Ld. DR सुनवाई की तारीख / : 10/08/2017 Date of Hearing घोषणा की तारीख / : 16/08/2017 Date of Pronouncement आदे श / O R D E R Per Manoj Kumar Aggarwal (Accountant Member)
1. In the captioned appeal for Assessment Year [AY] 2011-12, the assessee is aggrieved by confirmation of penalty u/s 271(1)(c) for Rs.1,57,790/- by Ld. Commissioner of Income Tax (Appeals)-47 [CIT(A)], Mumbai order dated 11/05/2016.2
ITA No 4978/Mum/2016 Bermaco Energy Systems Limited Assessment Year 2011-12 2.1 Facts leading to the same are that the assessee being resident corporate assessee engaged as Turnkey Project Management Consultants and dealing in Shares has been assessed for impugned AY u/s 143(3) on 30/03/2014 at Rs.3,65,76,520/- as against returned income of Rs.2,84,98,859/- filed by the assessee on 24/05/2012.
2.2 During assessment proceedings, it was noted that the assessee claimed Short Term Capital Loss [STCL] on sale of certain shares for Rs.1,63,41,050/- which occurred during the period of 3 months from the record date for dividend on these shares. Accordingly, the provisions of Section 94(7) were invoked and a disallowance of Rs.5,10,643/- was made in the quantum assessment. The assessee, while accepting the same, contended that the assessee was not guided in this matter by the Tax consultant and hence the matter escaped notice. 2.3 Consequently, penalty proceedings were initiated u/s 271(1)(c) during quantum assessment and finally, an amount of Rs.1,57,790/- has been imposed as penalty u/s 271(1)(c) on 24/09/2014 by Ld. AO for deliberate concealment and furnishing of inaccurate particulars of income. During penalty proceedings, the assessee contended that the said disallowance escaped attention due to inadvertent mistake and upon being pointed out by the Ld. AO, the assessee accepted the disallowance. However, there was no concealment of income by furnishing inaccurate particulars so as to attract penalty u/s 271(1)(c) since full particulars thereof were furnished in the computation of income. However, not convinced, Ld. AO imposed the impugned penalty which was further contested before Ld. CIT(A) without any success vide impugned order dated 11/05/2016. The Ld. CIT(A) confirmed the same 3 ITA No 4978/Mum/2016 Bermaco Energy Systems Limited Assessment Year 2011-12 by noting, inter-alia, that the assessee could not adduce evidence to support the contention that there was omission on the part of tax advisor. Aggrieved, the assessee is in appeal before us.
3. The Ld. Representative for assessee [AR] assailed the penalty on technical grounds as well as on merits. Our attention has been drawn to the notice issued u/s 274 read with Section 271(1)(c) as placed on Page No. 32 of the paper-book to contend that the appropriate charge / limb for which the penalty was being levied was not appropriately marked by Ld. AO which, in itself, vitiates penalty proceedings as per several judicial pronouncements. On merits, Ld. AR contended that complete details of Short Term Capital Loss was furnished by the assessee in the computation of income and the matter of disallowance u/s 94(7) escaped the attention of the assessee since the same was not pointed out by the Tax Consultant. The assessee, upon realizing the same, accepted the mistake and paid the due taxes forthwith and hence, penalty was not justified.
4. Per contra, Ld. DR placed reliance on the conclusion of Ld. CIT(A) and contended that the assessee could not substantiate the fact that the same occurred due to inadvertent error or there was any omission on the part of Tax consultant.
5. We have heard the rival contentions. It is noticed that the assessee suffered Short Term Capital Loss of Rs.163.41 Lacs out of which an amount of Rs.5.10 Lacs only was found disallowable u/s 94(7). This fact, in itself, gives strength the arguments of Ld. AR that the error crept in due to inadvertent mistake. This fact is further fortified by the conduct of assessee since the assessee accepted the mistake at assessment stage 4 ITA No 4978/Mum/2016 Bermaco Energy Systems Limited Assessment Year 2011-12 itself and paid due taxes forthwith. Therefore, it is not the case that the assessee has concealed the particulars of income or furnished inaccurate particulars of income since the working of short term capital gains / loss was provided in the computation of income. The second reason to concur with the stand of Ld. AR is show cause notice dated 30/03/2014 issued u/s 274 read with section 271(1)(c), a perusal of which reveals that the appropriate charge / limb is neither ticked nor struck-off which, in itself, vitiates penalty proceedings as per the decision of this Tribunal rendered in Chandru K.Mirchandani Vs. ITO [ITA No. 5368/Mum/2014 dated 05/04/2017]. Hence, on totality of facts and circumstances, we are inclined to delete the impugned penalty.
6. Resultantly, the assessee's appeal stands allowed.
Order pronounced in the open court on 16th August, 2017.
Sd/- Sd/-
(D.T. Garasia) (Manoj Kumar Aggarwal)
ाियक सद / Judicial Member लेखा सद / Accountant Member मुंबई Mumbai; िदनां क Dated : 16. 08.2017 Sr.PS:- Thirumalesh आदे श की ितिलिप अ !ेिषत/Copy of the Order forwarded to :
1. अपीलाथ# / The Appellant
2. $%थ# / The Respondent
3. आयकर आयु,(अपील) / The CIT(A)
4. आयकर आयु, / CIT - concerned
5. िवभागीय $ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai
6. गाड/ फाईल / Guard File आदे शानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, मुंबई / ITAT, Mumbai