9911796707
TMI Blog2015 (10) TMI 1704X X X X Extracts X X X X X X X X Extracts X X X X ..... sue out of which penalty was imposed has already been decided by the Hon'ble Tribunal in favour of assesee and in this respect he invited our attention to para 8.3 and para 8.4 of the said order. The Ld. DR though supported the order of AO fairly acceded that this has been deleted by Hon'ble Tribunal. 2. We have heard rival submissions and have gone through the material available on record. We find that the penalty u/s 271(1)(c) was imposed by the AO as he treated part of income from sale of shares as business income instead of capital gains by the assessee. In this respect relevant part of AO imposing penalty are reproduced below :- "After concluding the order u/s 143(3) of the Act, the AO initiated penalty proceedings u/ s 271(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to the extent of short term capital gain of Rs. 1,39,41,555/- and hold that amount of Rs. 36,09,941/- in the nature of business income. " After receiving the order of the Ld CIT(A) on 04.05.2010, the undersigned, once again, issued a show cause notice u/ s 271(1)(c) of the Income Tax Act, 1961 (dated 08.09.2010) , and asked why penalty should not be imposed in your case with request to attend my office on20.09.2010 at 11.30 a.m. Assessee, on the other hand, replied after expiry of 15 days from the date fixed for appearance, requested for two week adjournment vide its letter dated 05.10.2010. Finally, it submitted its reply on 26.10.2010, and itself accepted/ confirmed that the Ld CIT(A) sustained the addition made by the AO to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch amount as its Business Income, it was AO who arduously made it possible. Then, the contention of the assessee .that it is neither concealment nor furnishing inaccurate particulars, was accordingly rejected. In view of the above facts & circumstances, and order of the Ld CIT(A) vide which the addition made by the AO was sustained up to the such extent, enumerated above, the assessee is, therefore, clearly attracted by the provisions of Section 271(1)(c) of the IT Act, 1961. Hence, I am of opinion that the assessee has furnished inaccurate particulars of its income, and is, therefore, liable for penalty u/ s 271(1)(c) of the IT Act, 1961. The maximum and minimum penalty leviable u/ s 271(1)(c) of the IT Act works out to Rs. 10,82,982/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g period of more than 30 days and as business transaction in the case where the holding period is less than 30 day, in our considered opinion, is not justified on the part of the CIT(A). Since there cannot be a single criteria for judging the transaction as capital asset or trading asset, the CIT(A) adopted only holding period as a sole criteria for bifurcating the transactions relating to the short term capital gain, which is neither proper and nor justified." 8.4 Respectfully following the same we have to necessarily dislodge this direction of the Ld. CIT(Appeals). We hold that the entire profits from the purchase and sale of shares have to be assessed under the head "capital gains". 5. From the above findings of Hon'ble Tribunal we f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
