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TMI Blog2017 (1) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... s income at Rs. 80. 35 lakhs. Brief facts: 2. During the assessment proceedings, the AO found that the assessee had sold one flat, plant and machinery and motorcar during the year under consideration, that the assets in question were depreciable assets though the period of folding of the assets was more than 36 months, that surplus on sale of the assets was considered under the head short-term capital gains (STCG) as per the provisions of section 48 and 49 of the Act, that it calculated STCG of Rs. 95. 81 lakhs, that it had also sold share of Decon Mercantile Private Ltd. , on which loss was calculated at Rs. 90 lakhs, that the period of folding of the shares was more than one year, that the assessee treated the shares under the head STCG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss in respect of sale of shares. The size referred to certain case laws including case of Reliance Petro Products Ltd. (322 ITR 158). After considering the submission of the assessee and the penalty order passed by the AO, the FAA held that he had called for comments from the AO about the submissions made by the assessee, that the AO did not make further comments and relied upon the penalty order only, that gain from depreciable asset was STCG for the purpose of section 48 and 49 only, that it did not apply to other provisions and that it was available for set off against the LTCL. He referred to the cases of Walter Saldhana (44SOT 26), Harshvardhan Chemicals and Minerals Ltd. (259 ITR 212). He further held that there was no dispute with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nett Coleman & Co Ltd. (ITA(LOD) 2017 of 2012) of Hon'ble Bombay High Court, Moonrock Investments And Trading Company Private Ltd. (ITA/1710/ Mum/2010). 5. We have heard the rival submissions and perused the material available on record. We find that the assessee had sold depreciable assets and had claimed STC G, that it had sold certain shares of a company and the loss suffered on sale of the shares was set off against the STCG of the depreciable assets, that while calculating the loss on sale of shares it had taken legal opinion about the nature of the loss, that in the quantum proceedings the FAA had partly allowed the appeal filed by it, that the AO had levied a penalty u/s. 271(1)(c) as he was of the opinion that the assessee had file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer initiated penalty proceedings u/s. 271(1)(c)(1)(c) of the Income-tax Act, 1961, and imposed penalty. The penalty was cancelled by the Commissioner of Income-tax (Appeals) and this was upheld by the Tribunal there was nothing on record to show that in furnishing its return of income, the assessee had either concealed its income or had furnished any inaccurate particulars of income. The mere treatment of the business loss as speculation loss by the Assessing Officer did not automatically warrant the inference of concealment of income. The cancellation of penalty was valid. " Similar view has been taken by the Hon'ble Bombay High Court in the matter of Bennett Coleman & Co Ltd. (supra). Respectfully following the above judgments we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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