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2012 (1) TMI 212 - AT - Income TaxLevying penalty u/s 271(1)(c) - treating income from sale and purchase of shares as capital gain - Held that:- The penalty has been levied by the reason of treatment of capital gain declared by the assessee as business income, which clearly shows that as far as the quantum on account of capital gain or expenditure, no mistake was found by the Assessing Officer, but there was a difference of view and opinion as the assessee declared said income as short term capital gain, which was treated by the Assessing Officer as business income. Accordingly, the claim of the assessee treating the income from sale and purchase of shares as capital gain cannot be treated as impossible view or absolutely illegal and incorrect treatment of income. Even for the subsequent year i.e. AY 2006-07, the income admitted by the assessee as capital gain was accepted by the Assessing Officer. Therefore, the issue of treatment of the income is a debatable issue and the view taken by the assessee in treating the same as capital gain, though was not acceptable but could not ipso facto lead to the conclusion that the assessee concealed the particulars of income or furnished inaccurate particulars of income. Accordingly, the penalty is not justified in the facts of the present case. Appeal filed by the assessee is allowed.
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