TMI Blog2015 (12) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of law being admitted by Hon'ble Gujarat High Court shows that the issue is debatable. These findings of ld. CIT(A) have not been controverted by Revenue. We further find that on merits, on identical issue as to whether the dividend income can be set off against the speculation loss, the Hon'ble Gujarat High Court in the case of CIT vs. Sphere Stock Holding Pvt. Ltd. (2011 (8) TMI 1124 - GUJARAT HIGH COURT) has upheld the view of ld. CIT(A) as well as Tribunal that the irrespective of provisions contained in Section 56 of the Act and Explanation to 73, loss should be adjusted against such business income. In view of the aforesaid facts and in the absence of any contrary binding decision brought to our notice by Revenue, we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred appeal before Tribunal who vide order dated 25.06.2006 upheld the order of ld.CIT(A) and dismissed the appeal of the Assessee. A.O thereafter initiated penalty proceedings u/s. 271(1)(c) as he was of the view that Assessee was not legally entitled to set off the dividend income against the other losses. He therefore held that Assessee had furnished inaccurate particulars of income and that the Assessee was liable for penalty u/s. 271(1)(c) of the Act and therefore by order dated 30.03.2011 levied penalty of ₹ 29,18,711/-. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 25.04.2012 deleted the penalty. Aggrieved by the order of ld. CIT(A), Revenue is now in appeal before us and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the set off was not permissible as per law and he therefore concluded that Assessee has furnished inaccurate particulars of income and levied penalty u/s. 271(1)(c) of the Act. In appeal, the penalty levied by A.O was deleted by ld. CIT(A) by holding as under:- 3.3 I have carefully considered the penalty order and the submission made by the appellant during the course of appellate proceedings. The appellant had shown business loss and had adjusted the dividend income on the same. The A. O. held the loss as speculation loss by applying the provisions of section 73 and did not allow the set off of dividend against the speculation loss. The appellant has submitted that it has preferred appeal against the order of ITAT in High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the computation of income, the income from business and the dividend earned on shares in the return of income. None of the particulars furnished by appellant were found to be false or inaccurate. The assessment of business loss as speculation loss by applying the provisions of section 73 was merely an opinion of the A. O. and it does not establish that the appellant has furnished any inaccurate particulars. Further, the fact that the matter has travelled up to ITAT, again set aside to the file of A. O. and the fact that question of law has been admitted by Hon'ble Gujarat High Court itself show that the issue is clearly debatable. Further, there is an opinion of the jurisdictional High Court on the same issue that the income / lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd income against the business loss. We find that ld. CIT(A) while deleting the penalty has given a finding that Assessee had disclosed all the relevant facts regarding the computation of income, the income from business and the dividend earned on shares in the return of income and none of the particulars furnished by the Assessee were found to be false or inaccurate. He has further noted that the issue is debatable as the matter had traveled up to ITAT, again set aside to the file of A.O and that the question of law being admitted by Hon'ble Gujarat High Court shows that the issue is debatable. These findings of ld. CIT(A) have not been controverted by Revenue. We further find that on merits, on identical issue as to whether the divide ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
