2015 (9) TMI 269 - AT - Income Tax

Penalty u/s 271(1)(c) - Loss incurred on purchase and sale of shares treated as short-term capital loss or business loss - FDR interest and dividend received assessed under the head income from other sources or income from business - Held that - The findings recorded in the assessment proceedings insofar as concealment of income and furnishing of incorrect particulars would not operate as res judicata in the penalty proceedings. It is open to the assessee to contest the said proceedings on merits. However, the validity of the assessment or reassessment in pursuance of which penalty is levied, cannot be the subject matter of penalty proceedings. The assessment or reassessment cannot be declared as invalid in the penalty proceedings - Penalty deleted - Decided in favour of assessee.

Summary

Issues:
1. Assessment of loss on share trading under short-term capital loss.
2. Assessment of FDR interest and dividend income under income from other sources.
3. Penalty levied under section 271(1)(c) for alleged concealment of income.

Issue 1: Assessment of Loss on Share Trading
The appellant, having two proprietorship concerns, declared a net profit after claiming various expenditures, including a loss on share trading. The Assessing Officer (AO) categorized the loss on shares as short-term capital loss, disallowing the business expense claim. The first appellate authority upheld this decision. The appellant contested that the loss should be assessed under the head "business." The tribunal found this issue debatable, considering the facts and circumstances. The appellant's explanation was deemed bona fide, leading to the conclusion that the penalty on debatable additions was unwarranted.

Issue 2: Assessment of FDR Interest and Dividend Income
The question arose whether FDR interest and dividends should be assessed under income from other sources or business income. The AO concluded these incomes fell under other sources, disallowing expenses claimed under section 37. Both the first appellate authority and ITAT affirmed this decision. Subsequently, a penalty under section 271(1)(c) was imposed for alleged concealment of income. The appellant argued that all necessary details were disclosed, and the issue was debatable. The tribunal acknowledged the debatable nature of these issues and ruled in favor of the appellant, canceling the penalty.

Issue 3: Penalty under Section 271(1)(c)
The penalty was imposed on the grounds of alleged concealment of income and furnishing inaccurate particulars. The appellant contended that all information was correctly provided, and any discrepancies were due to a variance in interpretation between the AO and the appellant. The tribunal considered various legal principles, including the absence of malafide intent and the need for a clear direction to initiate penalty proceedings. Applying these principles to the case, the tribunal found the penalty unjustified and canceled it, allowing the appeal of the assessee.

In conclusion, the tribunal ruled in favor of the appellant on all issues, emphasizing the debatable nature of the assessments and the absence of malafide intent in the appellant's actions. The penalty under section 271(1)(c) was deemed unwarranted, leading to its cancellation.