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TMI Blog2013 (4) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... sultancy services. During the assessment year under consideration, the Assessing Officer noted from the statement of total income that total income of ₹ 1,45,49,690/- consisted of short term capital gain on sale of shares amounting to ₹ 1,39,29,733/- and profits of the business (from sale of shares) of ₹ 6,19,960/-. That this is the first year of business of the assessee. The Assessing Officer stated that what is claimed by the assessee as short term capital gain is the profit on sale of shares and treated the said amount as profits and gain of business which is subject to normal rate of taxation. It is relevant to state that assessee disputed the assessment order in the quantum proceedings before the first appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ld A.R. submitted that it is a debatable issue and relying on the decision of Hon ble Delhi High Court in Income tax Appeal No.683/2012 dated 21.12.2012 in the case of CIT vs. Amit Jain, copy placed at pages 20-21 of PB submitted that on similar facts as to whether income declared as short term capital gain but assessed as income from business could be subject to levy of penalty u/s.271(1)(c) of the Act on the ground of furnishing inaccurate particulars of income, Hon ble Delhi High Court dismissed the appeal of the revenue by confirming order of the Tribunal that levy of penalty is not justified. The amount in question which formed the basis for the AO to levy penalty was in fact truthfully reported in the returns. Merely because the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and, accordingly, has levied penalty thereon @ 100% of tax sought to be evaded. We observe that assessee has furnished all the details of its income in the return filed and AO while making the assessment considered the said income as business income instead of treating the same as short term capital gain as claimed by the assessee in the return filed. We agree with ld A.R. that change of head of income does not ipso facto lead to the conclusion that assessee concealed particulars of income or furnished inaccurate particulars as held by Hon ble Delhi High Court in the case of Amit Jain (supra) and also the Tribunal in the case of Sukdham Construction Developers (supra). We agree with ld A.R. that it is a debatable issue and thus, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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