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TMI Blog2018 (12) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... be deleted. - Decided in favour of assessee. - ITA No.2646/Del/2015 - - - Dated:- 20-12-2018 - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Appellant : Sh. Somil Aggarwal Sh. Deepesh Garg, Adv. For the Respondent : Smt. Naina Soin Kapil, Sr.DR ORDER PER O.P. KANT, A.M.: This appeal by the assessee is directed against order dated 30/01/2015 passed by the Ld. Commissioner of Income-tax (Appeals)-12, New Delhi [in short the Ld. CIT(A) ] for assessment year 2006-07 in relation to penalty under section 271(1)(c) of the Income-tax Act, 1961 (in short the Act ). The grounds of appeal raised by the assessee are reproduced as under: 1 That on the facts and under the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 11,74,077/-on account of sale of 8500 shares of HFCL, which was adjusted against other business income and income from other sources. The assessee claimed that shares were held as stock-in-trade since assessment year 2002-03 and were valued at cost price. However, according to the Assessing Officer, the assessee had shown the shares under the head stock in trade in the individual capacity and no separate balance sheet or profit loss account had been drawn in respect of the purchase of the shares. The Assessing Officer also noted that shares of the group companies were held by the assessee as investment and there was no reason to treat the shares of the HFCL as stock-in-trade. The Assessing Officer also noted that this was a solitary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty proceedings under section 271(1)(c) of the Act. No further appeal was preferred by the assessee against the loss held as capital loss by the Assessing Officer. In view of the addition not disputed by the assessee, the Assessing Officer issued show cause notice as why the penalty may not be levied. The assessee submitted that he has neither concealed not furnished inaccurate particulars on the issue of loss held as capital loss and the addition was only due to difference of opinion. The Ld. Assessing Officer rejected the contention of the assessee and levided penalty amounting to ₹ 4,01,352/-equivalent to 100% of the tax sought to be evaded by the assessee. Aggrieved, the assessee filed appeal before the Ld. CIT(A), who uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the income under some other head, same cannot be characterised as particulars reported in the return as inaccurate particulars or suppression of facts . 5. On the contrary, the Ld. DR relied on the finding of the lower authorities and submitted that the finding of the Ld. CIT(A) might be upheld. 6. We have heard the rival submissions and perused the relevant material on record. We find that in the return of income filed, the assessee has shown sale of 8500 shares of HFCL and the loss arising on account of the sale was claimed as business loss. This claim of the business loss made by the assessee has been rejected by the Assessing Officer and held the same as long-term capital loss as the assessee in earlier years has not trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions which include CIT vs. Khoday Eswarsa Sons 1972 CTR (SC) 295 : (1972) 83 ITR 369 (SC) and CIT vs. J.K. Synthetics Ltd. (1996) 135 CTR (Del) 4 : (1996) 219 ITR 267 (Del). 5. With respect to the fact that the assessee had accepted the view taken by the AO that the loss due to trading in shares was in the nature of a speculative loss, the assessee contended that in the penalty proceedings, it can take up the plea that the claim made in the return was bona fide. 9. In the case of CIT Vs Amit Jain (supra), also the Hon ble Delhi High Court observed that merely change of head of income cannot characterize furnishing inaccurate particulars or suppression of facts and thus no penalty can be levied in such circumstances. The releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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