ASST CIT 25(2), MUMBAI vs. RAJESH D NANDU (HUF), MUMBAI

We have heard both the parties and perused the orders of the Revenue Authorities as well as the relevant material placed before us. After hearing both the parties, we find there is no default of disclosure by the assessee so far as particulars of income is concerned. It is a case of change of head of income by the assessee. On considering the Ld Counsel‟s arguments, we are of the view that the penalty is not excisable merely for the reason of change of head of income when there is no concealment of particulars of income. It is also not the case of furnishing of inaccurate particulars. We have also perused the contents of para 7 of the CIT (A)‟s order and find, in earlier occasions also, similar adjustments were made to the head of income qua this kind of gains and found the CIT (A) deleted the same. For the sake of completeness of this order, the said para 7 from the CIT (A)‟s order is extracted as under:- “7. I have gone through the contentions of the AO and the submissions of the appellant in this regard. The issue for addition was whether the gains on share trading should be treated as business income of the appellant or should it be taken as capital gains. The AO treated the same as business income and later imposed penalty on the opinion that the appellant had concealed particulars of income within the purview of meaning of section 271(1)(c). The appellant has made his submissions and has emphasized on the fact that while there can be a discussion or debate on which head should the income have been taken under, however, it cannot be the case of Revenue that the appellant had concealed any particulars of his income. To make his point, the appellant has submitted judicial decisions cited supra in its submissions. I am inclined to agree with the contentions of the appellant that all the transactions of purchase and sale of shares were declared and all the details asked for by the AO during the course of assessment were duly submitted and the appellant has been maintaining its books of accounts as per the prescribed accounting standards. In light of the same, it cannot be said that the appellant had concealed any particulars of its income and therefore, penalty levied u/s 271(1)(c) is hereby deleted. It may be mentioned in the appellant‟s case that on similar grounds the penalty for AY 2008-09 has also been deleted vide order no. CIT (A)-35/ACIT.25(2)/ITA.60/2011-12, dated 14.1.2013.”

Considering the above, we are of the opinion that the order of the CIT (A) is fair and reasonable and it does not call for any interference. Accordingly, ground raised by the Revenue is dismissed.

In the result, appeal of the Revenue is dismissed. Order pronounced in the open court on 10th February, 2016. (SANDEEP GOSAIN) ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक 10.2.2016