CIT vs. SPLENDOR CONSTRUCTION

IN THE HIGH COURT OF DELHI AT NEW DELHI . 09.12.2010 Present : Ms.Suruchi Aggarwal, Advocate for the appellant. Mr. Manu K.Giri, Advocate for the respondent. . + ITA No.1977/2010 . . Penalty was also imposed on the ground that in the return filed by the assessee, the assessee had claimed brought forward losses which were not allowed by the Assessing Officer. As per the ITAT as there was a change in more than 51% of the share holding pattern. The tribunal had held that the penalty on this count in this manner claim of brought forward loss amounting to Rs.1,27,424/- was made as set off in computation of income. The Tribunal had accorded the finding of the fact that there was an inadvertent mistake by the assessee with regard to change in share holding pattern during the course of assessment proceedings itself. The assessee filed letter dated 23.12.2005 and withdrew the aforestated claim. So far as this aspect is concerned no question of law arises. . Admit on the following substantial question of law i.e. . ?1.Whether the treatment given by the assessee company to the short terms capital asset as a long term capital asset is not a colorable device used by the assessee company to pay lower rate of tax on the gain accruing from the sale of immovable property under the garb of ?Long Terms Capital Gain? which was actually the short terms capital gain attracting normal rate of tax? . 2. Whether AO was justified in imposing penalty under Section 271(1)(c) as the income derived by the assessee was taxable at the normal rate of tax i.e. 35% under short terms capital gain, whereas in the return of income the assessee declared this income as Long Terms Capital Gain, and paid tax at a lower rate i.e. 20% and thus furnished inaccurate particulars of its income?? . With the consent of the parties, the matter is heard finally. Order is reserved. . . ???????????????A.K.SIKRI, J. . . . . . . INDERMEET KAUR, J. . DECEMBER, 09, 2010 nandan . #70