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2017 (1) TMI 777 - ITAT MUMBAILevy of penalty under section 271(1)(c) - change of head of income - the income shown under the head STCG by the assessee is to be assessed under the head income from ‘Business and Profession’ - Held that:- The assessee had declared the income arising out of purchase and sale activity in shares and securities as STCG as against business income assessed by the AO. It is seen that the assessee had also filed written submissions before the authorities below that she was under the bona fide belief that its activity of purchase/sale of shares and securities was only capital gain and not business income and also that the assessee’s claim of capital gains/loss has been accepted by the AO in the assessee’s own case for the next assessment year i.e. A.Y. 2009-10, which was completed in scrutiny under section 143(3) of the Act. The authorities below were not able to controvert arguments put forth by the assessee or hold them to be false. In this view of the matter and respectfully following the decision of the Hon'ble Bombay High Court in the case of Bennett Coleman & Co. Ltd. (2013 (3) TMI 373 - BOMBAY HIGH COURT) and of the Coordinate Bench of the Tribunal in the case of Mita J. Jhaveri (2017 (1) TMI 682 - ITAT MUMBAI) we hold that since there is only a change of head of income from ‘STCG’ as declared by the assessee to ‘business income’ as held by the AO and no evidence brought on record that the assessee’s claim was not bona fide, we delete the penalty of ₹ 1,18,735/- levied under section 271(1)(c) of the Act for A.Y. 2008-09. - Decided in favour of assessee
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