COMMISSIONER OF INCOME TAX vs. SHYAMA A BIJAPURKAR

IN THE HIGH COURT OF DELHI AT NEW DELHI . ITA 842/2010 . . . COMMISSIONER OF INCOME TAX ..... Appellant Through Mrs. P.L. Bansal, Adv. . versus . SHYAMA A BIJAPURKAR ..... Respondent Through None. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN . O R D E R 13.07.2010 . The assail in the present appeal preferred under Section 260A of the Income Tax Act, 1961 (for brevity ?the Act?) is to the order dated 26th June, 2009 passed by Income Tax Appellate Tribunal (for short `the tribunal?) in ITA No.1428/Del./2008 pertaining to the assessment year 2004-05. The facts which are imperative to be stated are that the respondent- assessee is a salaried employee of M/s American Express (India) Pvt. Ltd. and has acquired certain shares under the employees stock option plan and made a gain of Rs.70,71,035/- from the sale of such shares which was claimed to be a long term capital gain. The said claim was put forth, as is evident from the order of tribunal, as a long term capital gain on the basis of ITA No.842/2010 page 1 of 3 advice given by a Chartered Accountant. The Assessing Officer did not accept the stand of the assessee and treated the same as a short term capital gain and also noticed that while deducting tax the employer had treated the same as short term capital gain. Being of this view the Assessing Officer initiated a proceeding under Section 271(1)(c) of the Act for the purpose of penalty and eventually imposed the penalty by repelling the explanation proffered by the assessee. Being dissatisfied, an appeal was preferred by the assessee before the Commissioner of Income Tax (Appeals) which did not meet with success. On a further appeal being preferred before the tribunal, the tribunal took note of the facts namely; that the assessee had filed the return treating it as a long term capital gain on the basis of advice given by a tax consultant; that it was not a case where it could be said that there was concealment or furnishing of inaccurate particulars inasmuch as the claim was put forth on the basis of an opinion of a tax consultant; and that the assessee was under an impression, a bona fide one, that the tax on the employees stock option plan could be a long term capital gain. In our considered opinion the reasons ascribed by the tribunal are cogent and germane and we are disposed to think that the assessee had bonafidely made a claim for getting the benefit of long term capital gain and, . ITA No.842/2010 page 2 of 3 therefore, the imposition of penalty under Section 271(1)(c) was really not attracted. Thus, the conclusion arrived at by the tribunal is absolutely impeccable and accordingly, we concur with the same. In the result, the appeal, being devoid of merit, stands dismissed in limine. . CHIEF JUSTICE . . . . . MANMOHAN, J JULY 13, 2010 vk . . . . . . . . . . . . . . . . . . . . ITA No.842/2010 page 3 of 3 . . .