2011 (1) TMI 625

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....e Tribunal is right in law and on facts in confirming the order passed by CIT (a) in deleting the penalty of Rs.20,00,000/- levied u/s 271(c)(c) of the Act.?"   Concisely stated, the facts leading to the present appeal are as under:   During the course of assessment proceedings, the Assessing Officer observed that the assessee had sold 90,000 shares of Sandesh Limited and had incurred loss of Rs.56,24,500/- which was adjusted towards the profit of other share transactions. The shares were shown as investment in earlier year and therefore the loss so incurred was required to be treated as capital loss and not to be allowed to be set off against profit of other share shown as a trading activities. The assessing officer therefo....

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.... treated the same as business loss/trading loss, whereas the Assessing Officer treated the said loss incurred as capital loss. The Commissioner (Appeals) further held that merely rejecting the explanation of the assessee does not establish guilt or malafide intention on the part of the assessee. The assessee has disclosed all the particulars of transactions of shares of Sandesh Limited and the loss incurred on sale of shares of Sandesh Limited in the books of accounts and claimed it as a business loss whereas the Assessing Officer reached the conclusion that the business loss claimed by the appellant is not a business loss but the same is required to be treated as capital loss. The rejection by the Assessing Officer of a claim of the appell....

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....essee as regards the business loss does not establish the concealment or guilt on the part of the assessee that the assessee had furnished inaccurate particulars of facts or inaccurate particulars of income and unless there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable to an intention or desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon, no concealment penalty can be levied. Since the assessee had furnished all the particulars in regard to purchase and sale of the shares which are not found to be incorrect, and since the only dispute is that the appellant has treated the same as business loss/trading loss where....