TMI Blog2014 (5) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has duly disclosed all primary facts i.e. purchase and sale of shares, details of payments made for purchase and payment received for sale of shares - Profit arising from sale of shares was duly disclosed - it cannot be said that the assessee is guilty of concealment of income because the assessee had disclosed the income as capital gain, and department assessed it under some other head – Relying upon CIT vs Reliance Petrochemicals Ltd. [2010 (3) TMI 80 - SUPREME COURT] - it is not a fit case for levy of penalty u/s 271(1)(c) – Decided in favour of Assessee. - I.T.A. No. 228/Del/2013, I.T.A.No.229/Del/2013 - - - Dated:- 9-5-2014 - Shri G. D. Agrawal And Shri A. T. Varkey,JJ. For the Appellant : Shri H. G. Malik San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the profit arising therefrom. That the Assessing Officer instead of assessing the income under the head capital gain , assessed the same as income from undisclosed sources . That merely because the Assessing Officer had changed the head under which the income was offered by the assessee, it cannot be said that either the assessee concealed the income or furnished inaccurate particulars of income. He therefore submitted that the penalty levied under Section 271(1)(c) and sustained by the CIT(A) may be cancelled. Ld. DR, on the other hand, relied upon the order of Assessing Officer and he pointed out that the CIT(A) has dealt with this issue in detail and has held that the explanation furnished by the assessee was not bona fide and he relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties shall be treated as the date of transfer provided it is followed up by actual delivery of shares and the transfer deeds. In the present case, nothing is brought on record regarding actual delivery of shares and transfer deeds by the alleged seller i.e. Diwakar Securities Ltd. We admit that shares in question are treated to the D-Mat account of the assessee on 3.7.2003 and entries appearing in the copy of D-Mat account of the assessee with NSDL are reproduced below:- 7. From the above, it can be seen that on 3.7.2003, 10500 shares were traded and such credit is on account of market receipt from the same client ID No. 14528754 and the same were debited on 5.7.2003 and the client ID is same i.e. 14528754. It means form the same ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee are of no help to the assessee because the credit in D-Mat account of the assessee remained unexplained and hence we feel that no interference is called for in the orders of the authorities below on this issue we confirm the same. These grounds of assessee are rejected. 4. From the above, it is evident that the ITAT has admitted that the shares in question were in the D-Mat account of the assessee and on 3.7.2003 (i.e. date of sale of shares), the entry is appearing in the copy of the D-Mat account of the assessee with NSDL. Thus, there was a prima facie evidence of the sale of shares. However, the ITAT found that the shares were purchased on 17.6.2002. At that time, it must have been taken by the assessee in physical form because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble apex court in the case of Reliance Petrochemicals Ltd., we are of the opinion that it is not a fit case for levy of penalty under Section 271(1)(c). The same is directed to be deleted. ITA NO. 229/Del/2013 - Shri Lokesh Kumar Singhal 5. The only ground raised in this appeal of the assessee is against the levy of penalty under Section 271(1)(c) of the Act amounting to Rs. 3 lakh. At the time of hearing before us, both the parties fairly agreed that the facts in the case of the assessee are identical to the facts in the case of Smt. Kusum Lata and, therefore, whatever is the outcome of appeal in the case of Kusum Lata, the same would be applicable in the case of this assessee. We have already decided the appeal in the case of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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