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01-03-2019, Asianet TV Holdings, Section 106, 114, 271(1)(c), Tribunal Mumbai

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2 weeks 5 days ago #8730 by amit
Section - 106, 114, 271(1)(c), 40A(2)(b), 37(1)
Order Date - 01-03-2019
Favouring - Assessee
Court - Tribunal Mumbai
Appellant - Asianet TV Holdings Pvt. Ltd.
Respondent - ACIT
Justice - SANDEEP GOSAIN, JM & G. MANJUNATHA, AM
Citation - 219Taxpundit160
Appeal No. - I.T.A. No. 4790/Mum/2017
Asstt. Year - 2007-08

Order

PER : Sandeep Gosain

1 The present appeal filed by the assessee is challenging against the order of Ld. CIT(A)-16, Mumbai dated 17/3/2014 for A.Y.2009-2010 in the matter of order passed u/s.143(3) of the IT Act.

2 Following grounds have been taken by the assessee in the year under consideration i.e A.Y.2009-2010 which reads as under:-

1. The order of the assessment is contrary to the facts and prejudicial to the assessee.

2. On appreciation of the facts and circumstances of the case and law, the additions made by the ld. Assessing Officer and subsequently confirmed by the Honorable Commissioner of Income tax (Appeals) are contrary to law and based on erroneous understanding of the facts.

3. On appreciation of the facts and circumstances of the case the ld Commissioner of Income tax (appeals)ought to have appreciated the fact that the Assess ng Officer has passed the Assessment order in utmost hurry without giving proper opportunities and as such the assessment order be treated as bad in law.

4. On appreciation of the facts and circumstances of the case the ld. Commissioner of Income tax (appeals) ought to have deleted the action of the ld. Assessing Officer, in disallowing the claim of short term capital loss to the extent of Rs.81,69,60,025/-. The action of the ld. Commissioner of Income tax (Appeals) is contrary to the facts of the case and deserves to be deleted.

5. On appreciation of the facts and circumstances of the case the ld. Commissioner of Income tax (appeals) ought to have deleted the action of the ld. Assessing officer, in disallowing the claim of Software Consultancy expense of Rs.2,42,66,000/-. The action of the ld. Commissioner of Income tax (Appeals) is contrary to the facts of the case and deserves to be deleted.

6. On appreciation of the facts and circumstances of the case the ld. Commissioner of Income tax (Appeals) ought to have deleted the action of the ld. AO, in initiating penalty proceedings u/s. 271(1)(c) of the I.T. Act on suo moto agreed additions declared by way of filing revised income during assessment proceedings. The action of the ld. Commissioner of Income tax (Appeals) is contrary to the facts of the case and deserves to be deleted.

7. Your petitioner reserves the right to add, amend, modify or alter the above grounds of appeal at any stage of appellate proceedings.” 3 At the very outset, Ld. AR submitted at bar that Assessee is not pressing Ground Nos 1 to 3 and 6, 7. Therefore, considering the statement of Ld. AR, ground no. 1 to 3 and 6, 7 are dismissed as not pressed. Thus, only Ground No 4 and 5 remains to be adjudicated on merits. 4 First of all, we shall take up Ground No 4 for disposal.

This ground relates to challenging the order of Ld. CIT(A) in upholding the disallowance made by AO with regard to the claim of Short Term Capital Loss.

5 We have heard the counsels for both the parties at length and we have also perused the material placed, judgment cited by the parties and the orders passed by the revenue authorities.

6. As per the facts of the present case, assessee is in the business of investment in shares, management consultants, advisors in various field of general administration, secretarial, commercial, financial, etc.The Return of income for the year under consideration was filed by the assessee on 29.9.2009. The assessee had shown Short term capital loss and hence, the said loss was set off by the assessee against the short term and long term capital gains. The AO after verifying the genuineness of the claim of capital gains as well as capital loss had passed the order of assessment by holding that the short term capital loss was created as an afterthought to reduce the tax incidence arising on sale of shares of Asianet Communications Ltd. The relevant

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