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TMI Blog2016 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 681625/-?" 2. Briefly stated, the facts of the case are that the return was filed by the assessee on 30/10/2004 declaring income of Rs. 3,21,10,203/-. The case was processed u/s 143(1) on 12/12/2005 and was later selected for scrutiny. During the year under consideration, the assessee company was engaged in the business of manufacturing of Time Mechanism Defence Store (Fuses, DAS/DAU Booster Sub Assembly, Graze Mechanism etc.) and X Ray Machine Parts. From the perusal of the return by the AO, it was found that during the year the assessee had shown a loss of Rs. 19,00,000 on sale of shares of Allied Tronics under the head 'Short term capital loss' and had set off this loss against the Short term capital gains'. The facts related to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the entry in the books determinative of the real nature of the transaction. The actual nature of the transaction must be looked into in order to determine as to whether the transactions constituted adventure in the nature of trade. The Supreme Court in the case of Raja Bahadur Visheshwar Singh vs. CIT : 41 ITR 685 held that purchase and sale of shares for substantial amount at frequent intervals would be treated as dealing in shares. In the assessee's case, there is frequent buying and selling of securities by way of shares and units of mutual funds. It would thus be evident that the assessee is in business of dealing in shares. I am, therefore, in agreement with the Assessing Officer that the provision of explanation to section 73 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred to Shri Jatinder Bawa on 20th March, 2004. This is impossible task. When the assessee itself sold the shares on 20th March, 2004, even if all the formalities are completed in the least possible time, the shares could not have been registered in the name of Shri Jatinder Bawa on 20th March, 2004. Though Shri Jatinder Bawa is stated to be employee of appellant company, he was never produced nor his whereabouts declared by the assessee to the Assessing Officer so that correct fact could be ascertained. When the assessee did not file requisite information or substantiate his claim, the Assessing Officer is competent to draw adverse inference. It can be stated that the assessee chose not to file evidence as filing evidence in the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Short-term capital loss" and had set off this against the Short-term capital gains. According to the AO the assessee had consciously and willfully filed inaccurate particulars of loss on sale of investments which was not in consonance with the provisions of the Act. Accordingly, penalty amounting to Rs. 6,81,625/- was imposed under the provisions of section 271(1)(c ) of the Act. 6. On appeal before the First Appellate Authority, the Ld. CIT (A) also confirmed the imposition of penalty and now the assessee is in appeal before us. 7. The Ld. AR submitted that the disallowance made for short term capital loss was not after un-earthing any concealed income but have been made on technical grounds or subjective judgment of the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Petroproducts Pvt. Ltd. 322 ITR 158 (SC), the Hon'ble Apex Court has held as follows: "A glance at this provision would suggest that in order to be covered, there has to be concealment of particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. The present is not a case of concealment of income. That is not the case of the Revenue either. However, the Ld. Counsel for the revenue suggested that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of income. As per Law Lexicon, the meaning of the word "particular" is a detail or details (in plural sense); the details of a claim, or the separate items of an account. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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