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TMI Blog2024 (7) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... A) erred in confirming the penalty levied by the AO u/s 271(1)(c) of Rs. 13,80,000/-, That on the facts and in the circumstances of the case and in law the penalty levied is wrong, bad in law and prayed to be deleted. 2. The Learned CIT(A) erred in confirming the penalty levied u/s 271(1)(c) stating that the addition was made by the AO in the assessment order and that the said assessment order was not challenged by the appellant and also that there is an element of concealment. That on the facts and in the circumstances of the case the very premises, on which the Learned CIT(A) confirmed the penalty is misconceived and not tenable. 3. The appellant craves leave to add, to alter, amend, modify, substitute, delete and of reaçind al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tto disallowance of the claim of set off of speculative loss against his business income before the show cause notice dated 19.12.2016 issued by the A.O. The Ld. AR has thus submitted that it is a case of addition made by the Assessing Officer by treating the business loss/speculative loss as bogus claim whereas all the transactions are carried out on the stock exchange through the registered broker and therefore, once the assessee itself has withdrawn the claim of set off loss in the revised computation as speculative loss it cannot be a case of furnishing inaccurate particulars of income or concealment of particulars of income. Thus he has contended that the initial claim of business loss was due to the confusion about the definition of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable and liable to the quashed. In support of this contention the Ld. AR has relied upon the following decisions: (i) ITO V/s Shri Uday Kumar B Bhatt ITA No.2072/Ahd/2018 of ITAT Ahmedabad Bench dated 06.08.2021. (ii) M/s HPCL Mittal Pipe Lines Ltd V/s ACIT ITA No.266(ASR)/2018 of ITAT Amritsar Bench dated 14.02.2019. (iii) M/s Oriental Clearing Agency V/s DCIT ITA No.356 to 359/Pun/2015 of ITAT Pune Bench. (iv) M/s Atibir Hi-Tech Pvt. Ltd V/s DCIT CC-XI, Kolkatta ITA No.1221/Kol/2011 of ITAT, Kolkatta Bench. 4. On the other hand Ld. DR has submitted that the A.O has issued the show cause notice u/s 142(1) on 18.12.2015 and only thereafter the assessee has revised its computation of income and withdrew the claim of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all these transactions are intra day transactions with no delivery and the purchase and sale of the particular commodity is within the difference of few seconds therefore, there is no dispute on this fact that the loss of Rs. 44,57,310/- claimed by the assessee in the return of income as business loss is a speculative loss and impermissible to set off against the business income. 5.1 The Ld. AR of the assessee has contended that the assessee has suo-moto withdrew the claim before the A.O issued show cause notice. However, we find that the case of the assessee was selected for scrutiny and A.O issued notice u/s 143(2) of the Act on 21.09.2015 and show cause notice u/s 142(1) of the Act was issued on 18.12.2015. In response to these notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said claim is impermissible resulting furnishing of incorrect particulars of income by the assessee in the return of income. The subsequent withdrawal of the claim by the assessee would not change the status of making the impermissible claim of speculative loss against business income. It is not the case of the assessee that he has made a wrong claim of setting off loss but the assessee has shown and reported this loss as business loss which clearly establishes the case of furnishing of incorrect particulars of income by the assessee. Hence, it is not a case of bona fide claim of assessee being speculative loss is mistakenly set off against business income but the assessee has consciously claimed the speculative loss as business loss and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced at page-62 of the paper book the A.O has again mentioned the specific charge for initiating proceedings u/s 271(1)(c) of the Act. For ready reference the show cause notice is reproduced as under: 6.2 The A.O has consciously deleted all irrelevant and unrelated part of the show cause notice and only the charge of furnishing inaccurate particulars of income was mentioned in the show cause notice. Thus, it is a case of initiation of penalty proceedings against a specific charge of furnishing inaccurate particulars of income which in our view is a correct charge for initiation of penalty u/s 271(1)(c) of the Act. Accordingly there is no defect either in recording of satisfaction or in issuing the show cause notice u/s 274 r.w.s. 271(1)(c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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