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TMI Blog2015 (7) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... tax - 3(2) Mumbai (hereinafter referred to as the Assessing Officer ) in levying penalty of Rs. 24,05,795/- under section 271(1)(c) of the Act". 2. The assessee company is engaged in the business of share trading and advisory In the course of assessment completed u/s 143(3), the Assessing Officer assessed the gain arising from the sale and purchase of shares as income from business as against the Short term Capital Gain offered by the assessee. The issue of treatment of gain from sale and purchase of shares has attained the finality as this Tribunal in the quantum appeal has confirmed the treatment of the said income as business income of the assessee. The Assessing Officer initiated the penalty proceedings u/s 271(1)(c) on account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.12.2012 in ITA 683/ 2012 and submitted that on the identical issue, the Hon'ble High Court has observed that when the assessee reported all the facts truthfully in the return of income and the Assessing Officer chose to treat the income under some other head cannot characterize the particulars recorded in the return as an inaccurate particular or as suppression of facts. He has also relied upon the decision of Coordinate Bench of this Tribunal dated 11.01.2012 in case of Sukhdham Construction & Developers Ltd. Vs. DCIT in ITA No. 2172/Mum/2011and submitted that an identical issue was decided by the Tribunal in favour of the assessee and consequently deleted the penalty. 4. On the other hand, the Ld. DR has heavily relied upon the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "3 We have considered the rival contention as well a 3 s the relevant material on record. In this case the assessee declared the income of Rs. 1,01,85,887/- which was claimed as short term capital gain. The Assessing Officer treated the income from purchase and sale of shares as business income and accordingly shown the total income of the assessee at Rs. 1,02,42,338/-. Thus, it is clear that as far as the quantum of income as declared by the assessee and finally assessed by the Assessing Officer is concerned, there is no change except some minor disallowance of loss on account of speculative loss by the Assessing Officer. Thus the penalty has been levied by the reason of treatment of capital gain declared by the assessee as business in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances as prevailing in the year under appeal. There is no discussion in the assessment order for assessment year 2006-07 about the transactions taking place in that year. Therefore, the said assessment order, in our view, does not affect the decision of the revenue authorities in the year under appeal. Finding no merit in this appeal of the assessee, we dismiss the same." 3.1 Thus, it is clear that even for the subsequent year i.e. AY 2006-07, the income admitted by the assessee as capital gain was accepted by the Assessing Officer. Therefore, the issue of treatment of the income is a debatable issue and the view taken by the assessee in treating the same as capital gain, though was not acceptable but could not ipso facto lead to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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