TMI Blog2015 (7) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-3-2015 - Vijay Pal Rao And N K Billaiya JJ For the Appellant : Shri Neelkanth Khandelwal For the Respondent : Shri Jeetendra Kumar ORDER Per: Vijay Pal Rao: This appeal by the assessee is directed against the order dated 17.09.2014 of CIT(A) arising from penalty order passed u/s 271(1)(c) of the Income Tax Act for A.Y. 2008-09. The assessee has raised following grounds:- 1. The Commissioner of Income Tax (Appeals) -4, Mumbai (hereinafter referred to as the CIT(A)) erred in upholding the action of the Deputy Commissioner of Income tax - 3(2) Mumbai (hereinafter referred to as the Assessing Officer ) in levying penalty of ₹ 24,05,795/- under section 271(1)(c) of the Act . 2. The assessee company is eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the difference is only tax liability because of change of head of income. The assessee furnished all the details, facts as well as explanation of claiming gain arising from purchase and sale of shares as Short term Capital Gain. Thus the Ld. Authorized Representative has submitted that assessing the income under a different head would not amount to concealment of income of furnishing inaccurate particulars of income when the income remained same. In support of his contention he has relied upon the decision of Hon ble Delhi High Court in the case of CIT Vs. Amit Jain dated 21.12.2012 in ITA 683/ 2012 and submitted that on the identical issue, the Hon ble High Court has observed that when the assessee reported all the facts truthfully in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing sale and purchase of shares and the amount of gain arising from the transaction are concerned. The only dispute in the assessment proceedings, is the treatment of income and accordingly the higher amount of tax. The Assessing Officer treated the Short term Capital Gain offered by the assessee as business income and brought the same to tax as per the applicable rate of tax. At the outset, we note that an identical issue has been considered by the Coordinate Bench of this Tribunal in the case of Sukhdham Construction Developers Ltd. Vs. DCIT (supra), in para 3 and 3.1 as under:- 3 We have considered the rival contention as well a 3 s the relevant material on record. In this case the assessee declared the income of ₹ 1,01,85,88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and accordingly assessing the profit under the head profits and gains of business . Before parting with this appeal, it may be pertinent to mention that our attention was invited to the assessment order for the subsequent assessment wherein the Assessing Officer has not treated the transactions of sale and purchase of shares as business. The short term capital gain has been assessed by the as declared by the assessee. In our considered view, the subsequent assessment order will not cloud the finding of the Revenue authorities in the year under appeal, which is based on the facts and circumstances as prevailing in the year under appeal. There is no discussion in the assessment order for assessment year 2006-07 about the transactions ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r suppression of facts. A similar view has been taken by the Tribunal in case of Immortal Finance Services Pvt. Ltd. Vs. DCIT in ITA No. 2563/Mum/2012, dated 30.04.2013. Following the earlier order of this Tribunal as well as the Judgment of Hon ble Delhi High Court, we are of the view that the Short term Capital Gain offered by the assessee from sale and purchase of shares treated by the Assessing Officer as business income would not amount to furnishing inaccurate particulars of income or concealment of particulars of income. Accordingly, we delete the penalty levied u/s 271(1)(c). 7. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on this 25.3.2015 - - TaxTMI - TMITax - Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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