TMI Blog2015 (7) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished all the details to the AO. The details of STT paid along with photo copies of Certificates in Form no.10 DB, bearing code of transactions etc. These code of transactions indicated as to whether the transactions were settled by actual delivery or not.Whether the loss in question should be treated as business loss or as speculative loss.This is a debatable issue. As decided in THE COMMISSIONER OF INCOME TAX & OTHS. Versus M/s MANJUNATHA COTTON AND GINNING FACTORY & OTHS. [2013 (7) TMI 620 - KARNATAKA HIGH COURT] the findings recorded in the assessment proceedings insofar as "concealment of income" and "furnishing of incorrect particulars" would not operate as res judicata in the penalty proceedings. It is open to the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the loss in question, is loss from the speculative business. He initiated penalty proceedings u/s 271(1)(c) of the Act. 2.1. Aggrieved the assessee carried the matter in appeal. The First Appellate Authority held that the assessee had disclosed all particulars and the AO has not stated that the particulars furnished were not correct or were inaccurate. The Ld.CIT(A) further held that it is not the case of the AO that the claim of the assessee was false or fabricated and he accepted the claim of the assessee. Ld.CIT(A) was of the opinion that this case of difference of opinion on the issue as to whether the loss claimed by the assessee is business loss or speculative loss. He granted relief. Aggrieved the Revenue is in appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2009, 5022 and 5023 of 2009, 5025 and 5026 of 2010 judgment dated 13th December, 2012 concluded as under. (a) Penalty under Section 271(1)(c) is a civil liability. (b) Mens rea is not an essential element for imposing penalty for breach of civil obligations or liabilities. (c) Wilful concealment is not an essential ingredient for attracting civil liability. (d) Existence of conditions stipulated in Section 271(1)(c) is a sine qua non for initiation of penalty proceedings under Section 271. (e) The existence of such conditions should be discernible from the Assessment Order or order of the Appellate Authority or Revisional Authority. (f) Even if there is no specific finding regarding the existence of the conditions menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order imposing penalty could be passed. (m) If the explanation offered, even though not substantiated by the assessee, but is found to be bonafide and all facts relating to the same and material to the computation of his total income have been disclosed by him, no penalty could be imposed. (n) The direction referred to in Explanation IB to Section 271 of the Act should be clear and without any ambiguity. (o) If the Assessing Officer has not recorded any satisfaction or has not issued any direction to initiate penalty proceedings, in appeal, if the appellate authority records satisfaction, then the penalty proceedings have to be initiated by the appellate authority and not the Assessing Authority. (p) Notice under Section 274 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of ITO vs. M/s HT Ferro Pvt.Ltd. wherein at para 5 it was held as follows. 5. In the absence of the assessee on the date of hearing, we heard the Ld.D.R. who strongly justified imposing of penalty u/s 271(1)(c ) of the Act, having regard to the facts and circumstances of the case discussed in the assessment order. In our view penalty u/s 271(1)(c ) was rightly been cancelled by the Ld.CIT(A). We agree with the view of the Ld.CIT(A) that the assessee had disclosed all the particulars of income and has not furnished any inaccurate particulars in respect of the issue in dispute. From out of the details furnished only, the AO has went on to consider the trading loss as a speculation loss in terms of provisions of Explanation to S.73 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
