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TMI Blog2015 (10) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... der the business head. As per the provisions of the Act, the assessee can convert his stock in trade in to investment. So, if in the year under consideration, it had opted for that option, there was no reason to reject its claim. It had passed necessary entries in the books of accounts. Therefore just because of a decision taken in quantum proceedings, it cannot be held that the assessee had concealed particulars of income. It is said that decision in the assessment proceedings do not result in automatic imposition of penalty. In the matter before us, the assessee had filed all the necessary details before the AO. There was difference of opinion between the assessee and the AO about the treatment to be given to the share transactions undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short term capital gains solely with the intention to pay tax at the lesser rate applicable to short term capital gains. b) As found by the Ld.CIT(A) during quantum appeal and as subsequently upheld by the ITAT, the share trading business carried on by the assessee till A.Y. 2005-06 remained the same in A.Y. 2006-07 2007-08 and therefore, the short term capital gains on share trading business claimed by the assessee was a false claim. c) The Ld.CIT(A) in the order in quantum appeal found that the fact of closing stock of shares of ₹ 3,82,77,523/- as on 31.03.2005 had been concealed by the assessee in its return for A.Y. 2006-07 and therefore, had the case not been selected for scrutiny, the fact of the assessee carrying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said income under the head 'income from business'. Penalty proceedings u/s 271(1)(c) of the Act were initiated against the assessee. The AO noted in the order levying penalty u/s 271(1)(c) of the Act, that the facts of the case were identical to the facts in assessment year 2006-2007 and following the same, penalty u/s. 271(1)(c) was levied for filing inaccurate particulars of income at ₹ 71,16,704. 4.1 The CIT(A), in turn, following his order in assessee's own case for assessment year 2006-2007, deleted the said penalty levied u/s 271(1)(c) of the Act. The Revenue is in appeal against the said deletion of penalty levied u/s 271(1)(c). 4.2 We find that the Tribunal in assessee's own case relating to assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d concealed particulars of income. It is said that decision in the assessment proceedings do not result in automatic imposition of penalty. In the matter before us, the assessee had filed all the necessary details before the AO. There was difference of option between the assessee and the AO about the treatment to be given to the share transactions undertaken by the assessee. The admission of the appeal by the Hon'ble jurisdictional High Court against the quantum proceedings prove that there is difference of opinion about the issue in question. In such matters, in our opinion, penalty should not be levied. So, considering the particular facts and circumstances of the case, we hold that the order of the FAA does not suffer from any legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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