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TMI Blog2010 (12) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... term capital gain out of sale of penny stocks. Further, he narrated stating that, on hearing the market news that such earnings have to be offered by many others in the market as short term capital gains to avoid the litigation with the revenue, the assessee filed the revised return which happened to be belated return disclosing the correct particulars in the said return. Relevant paras 3, 4 and 4.1 of CIT(A) are as under:- 3. The facts of the case as per records are that the assessee has filed his original return consisting of income from long term capital gain of ₹ 8,86,540/- on account of sales of shares. Assessee subsequently filed revised return wherein the long term capital gain original shown was revised as short term cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was not voluntary but as a result of the investigation carried out by the Investigation Wing of the Department. Further, it was also observed that the revised return filed by the assessee was not valid within the meaning of section 139(5) of the Income Tax Act, 1961. It was observed that in case of assessee, the transactions in share were found to be non-genuine and the documents produced in support of such transaction were fabricated for which the capital gains shown by the assessee were treated as income from other sources. It was also stated that the assessee did not furnish any new evidence in the penalty proceedings to substantiate the different interpretation of capital gains claimed. It was thus, concluded that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counted money into accounted transaction by payment to meager tax. Assessee is benefited by offering the same under the head capital gains and not under the head income from other sources. He also highlighted furnishing of belated revised return which must not be taken into cognizance as it is invalid one in the sight of the law. As per the Revenue only the original return of income exists and the particulars furnished in the said valid return must only be reckoned. Further, Ld. DR relied on the citations reported in 186 ITR 571 and 222 ITR 496 and 299 ITR 179. 5. During the time of rebuttal, Ld. Counsel mentioned that the act of filing the revised return was belatedly showed the voluntary nature of the assessee in coming clean before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat assessee came forward to undo the claim made in the original return by filing the belated return of income, the offer of the impugned gains under the head short term capital gain which is held by this Bench of the Tribunal as proper, we are of the opinion that the assessee s case is covered by the above referred decisions of the Tribunal of both Lucknow and Delhi Benches. In any case, this is the case where assessee came forward to undo the claim made in the original return and in this decision of the Tribunal, we find there is an element of voluntary act on part of the assessee, though it is done belatedly. In any case, the department has not brought out any incriminating material to demonstrate the impugned penny stocks in question we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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