ACIT -33(1), MUMBAI vs. AMIT P. PANDVA, MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद�य लेखा सद�य, राजे�� राजे�� केकेकेके अनुसार अनुसार/ PER Rajendra A.M.- लेखा लेखा सद�य सद�य राजे�� राजे�� अनुसार अनुसार Challenging the order dated 20/02/2015 of the CIT (A)-45,Mumbai, the Assessing Officer (AO)has filed the present appeal.Assessee, an individual, filed his return of income on 30/09/ 2008,declaring income of Rs. 4.31 crores.The AO completed the assessment u/s.143 (3) of the Act on 03/12/2010. 2.Effective ground of appeal is about deleting the penalty levied by the AO u/s.271(1)(c) of the Act.During the assessment proceedings, the AO found that the assessee had declared income from various sources. After considering the material available he held that the assessee had wrongly classified under the two heads i.e. business income and capital gains. He assessed the entire profits arising out of purchase and sale of shares under the head income from business. Thus,profit on sale of shares,amounting to Rs.60.86 lakhs,shown as STCG was treated as business income.He also initiated penalty proceedings under section 271(1)(c) for furnishing inaccurate particulars of income. As per the AO the assessee did not file any explanation with regard to the show-cause notice issued for imposing penalty.He held that the assessee had offered income from sale of shares for taxation at concessional rate i.e. under the head short-term capital gains,that assessee had furnished inaccurate particulars. He levied a penalty of Rs.13.79 lakhs under section 271(1)(c) of the Act.

3.Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority (FAA).Before her, the assessee argued that penalty was levied on the ground that assessee had offered income on sale of shares held as investment under the head

3078/M/15Amit P.Pandya capital gains, that same was to be assessed under the head profit and games of business, that there was no addition to total income of the assessee,that he became liable to pay tax only on account of difference in rate of tax on the income, that there was neither a case of concealing particulars of income nor that of furnishing inaccurate particulars of income, that no penalty was leviable under section 271(1)(c) of the Act. He relied upon the case of Inderson Leather (P.) Ltd. (196 taxman 103).After considering the submission of the assessee and the penalty order, the FAA referred to the cases of Evergreen Investments and Services Private Ltd. (ITA/4313/Mum/2012,dated 22/ 01/2014),Auric Investment and Securities Ltd. (310ITR121)and held that the only issue of contention for imposition of penalty was treatment of capital gains as business income by the AO, that it was not a case of furnishing of inaccurate particulars of income.Relying upon the cases of Kanbay Software India (P) Ltd. (31SOT 153)and Evergreen Investments and Services Private Ltd.(supra),she held that where two views were possible and the issue was only regarding the treatment as to under which heaad the income was to be taxed, penalty under section 271(1)(c) should not be imposed. Finally,she allowed the appeal filed by the assessee.

4.During the course of hearing before us,the Departmental Representative (DR) relied upon the order of the AO. None appeared on behalf of the assessee, as mentioned earlier. We find that the AO had imposed the penalty under section 274 r.w.s. 271(1)(c) of the Act for furnishing inaccurate particulars, that the AO had treated the short-term capital gains as business income. In our opinion the action of the AO was not. The difference of opinion about the head of income under which it should be taxed cannot be basis for levying penalty for furnishing inaccurate particulars. As the order of the FAA does not suffer from any legal or factual infirmity and is supported by the cases cited by her, so, confirming the same we decide effective ground of appeal against the AO. As a result, appeal filed by the AO stands dismissed. फलतः िनधा�रती अिधकारी �ारा दािखल क� गई अपील नामंजूर क� जाती है. Order pronounced in the open court on 06th January, 2017. आदेश क� घोषणा खुले �यायालय म� �दनांक 06 जनवरी, 2017 को क� गई । Sd/- Sd/- (अमरजीत �सह / Amarjit Singh ) (राजे�� / Rajendra) �याियक सद�य / JUDICIAL MEMBER लेखा लेखा लेखा सद�य लेखा सद�य सद�य / ACCOUNTANT MEMBER सद�य मुंबई Mumbai; �दनांकDated : 06.01.2017. Jv.Sr.PS. आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to : आदेश आदेश आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत 2

3078/M/15Amit P.Pandya