ACIT, NEW DELHI vs. SH. BRIJ MOHAN LABROO, NEW DELHI

Brief facts of the case are that assessee is an individual who filed its return of income on 13/11/2007 showing total income of Rs. 12651710/-. Assessee is a director in a company and has shown the business of the assessee as trading in security. During the year assessee has earned income from trading in futures and options on share market and also on short term capital gains and long-term capital gain on sale of shares. When assessment was framed u/s 143(3) of the act ld. assessing officer treated the short-term gain on sale of shares amounting to Rs. 4544997 as income from business and profession. Further disallowance under section 14 A of the income tax act was also made of Rs. 250,254/-. Consequently total income was assessed at Rs. 1 2901967/-. The Ld. assessing officer initiated penalty proceedings under section 271 (1) (C) of the act. Aggrieved by the order of the Ld. assessing officer assessee filed appeal before ld. CIT appeals Page 2 of 3 who confirmed the addition made by the Ld. assessing officer. Consequently penalty proceedings were further persued by Ld. assessing officer and final penalty show cause notice was issued to 06/03/2012. Before the assessing officer it was submitted that the Ld. assessing officer has merely changed the head of short term capital gains as business income and therefore there is no penalty which can be levied on the assessee. It was further contended that complete details of the purchase and sale of shares and units were duly reflected in the books of accounts of the assessee as well as the income tax return filed by the assessee and it is only the claim of the assessee which is not accepted by the Ld. assessing officer which has resulted into the addition made to the taxable income of the assessee. Therefore it was contended that no penalty could be levied. However the Ld. assessing officer levied a penalty of Rs. 1597166/- applying the decision of Hon’ble Delhi High Court in case of Zoom communications (P) Ltd 327 ITR 510. Aggrieved by the order of the ld. assessing officer assessee preferred appeal before Ld. CIT appeal who deleted the penalty holding that appellant has faithfully disclosed all the facts of purchase and sale of shares as well as transaction made by him in future and options in his return of income as well as in profit and loss account. Therefore relying upon the decision of Hon’ble Supreme Court in case of CIT V Reliance Petro Products Ltd 322 ITR 158 (SC) he deleted the penalty. Against the order of the Ld. CIT appeal revenue is in appeal before us.

Ld. departmental representative relied upon the order of the Ld. assessing officer and stated that when the assessee was trading in shares he showed his income as capital gains and therefore the penalty is rightly levied.

Despite notice to the assessee, none appeared before us . Therefore the issue is decided on merits.

We have carefully considered the argument raised by the Ld. departmental representative as well as the reasons given by the Ld. assessing officer for leavying the penalty and reasons given by the Ld. CIT appeal for deleting the penalty. In the present case the penalty is levied under section 271 (1 © for the reason that assessee has shown income from sale of shares as capital gains instead of showing it as income from business of profession. In the present case Ld. assessing officer himself restricted the profits on sale of shares which are held for more than 365 days as long term capital gain but