ITO, Jaipur V. RAVI SANCHETI, Jaipur

ITA 1061/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2099 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 02-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY MALIKJCIT
• Assessee Lawyers: MANISH AGARWAL CA DHK
• Keywords: Capital asset; Business income; Depreciation; Date of conversion; Difference of opinion
• Section: 54F

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR ] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 1061/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER, WARD 2(1), JAIPUR. CUKE VS. RAVI SANCHETI, (I) 176, HALDIYON KA RASTA, JOHARI BAZAR, JAIPUR, (II) C/O- O.P. AGARWAL, CA, 13/3147, 1 ST FLOOR, AJMERI GATE, M.I. ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABXPS 3597 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI AJAY MALIK(JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/05/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT :18/05/2017 VKNS'K@ ORDER PER: KUL BHARAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 23/09/2016 PASSED BY THE LD. CIT(A)-I, JAIPUR FOR TH E A.Y. 2007-08, WHEREIN THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF AP PEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN CANCELLING THE PENALTY IMPO SED U/S 271(1)(C) WHEN THE ASSESSEE FILED INACCURATE PARTICULARS OF I NCOME BY CLAIMING LTCG, WHEREAS THE ASSET HAD ALREADY CONVERTED IN ST OCK IN TRADE IN THE MARCH, 2005. ITA 1061/JP/2016_ ITO VS RAVI SANCHETI 2 (II) ALTERNATIVELY, EVEN THE LD. CIT(A) AND HONBLE ITAT HELD THAT THE ASSESSEE WAS NOT ONLY LIABLE FOR LTCG BUT ALSO STCG , WHICH WAS NOT DECLARED BY THE ASSESSEE IN HIS RETURN OF INCOME TA NTAMOUNT TO FURNISHING OF INACCURATE PARTICULAR OF INCOME. 2. BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT I S PROPRIETOR OF M/S INTERNATIONAL GEMS AND CARRYING ON THE BUSINESS OF GEMS AND STONES AND FILED THE RETURN OF INCOME FOR THE YEAR UNDER CONSI DERATION ON 10-10-2007 DECLARING TOTAL INCOME AT RS.8,84,110/-. THE CASE WA S SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED BY LD. ASSESSING OFFICE R VIDE ORDER DATED 31-12-2009 MAKING VARIOUS ADDITIONS/DISALLOWANCES IN TER ALIA TREATING THE SALE OF CAPITAL ASSET AS ADVENTURE IN THE NATURE O F TRADE AND THUS PROFIT ON SALE WAS COMPUTED BY LD. AO UNDER TWO HEADS: (I) RS.26,86,551/- UNDER THE HEAD CAPITAL GAINS ON THE PREMISE THAT CAPITAL ASSET ACQUIRED IN JUNE 2001 WAS CONVERTED I N STOCK IN TRADE IN MARCH 2005, AFTER WHICH CONSTRUCTION ON TH E PLOT STARTED. (II) RS.54,40,175/- AS BUSINESS INCOME ,I.E. ON THE BAS IS OF SALE OF PLOTS BY GIVING DUE CREDIT ON ACCOUNT OF FAIR MARKE T VALUE OF PLOT ON THE DATE OF CONVERSION AND COST OF CONSTRUCTION INCURRED DURING THE YEAR UNDER APPEAL. THE ASSESSING OFFICER HAD ALSO WITHDRAWN THE DEDUCTION CLAIMED BY ASSESSEE U/S 54F OF THE ACT. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS ON THESE ADDITIONS SEPARATELY. SUBSEQUE NTLY, PENALTY OF RS. 19,06,221/- WAS IMPOSED U/S 271(1)(C) OF THE ACT ITA 1061/JP/2016_ ITO VS RAVI SANCHETI 3 3. AGGRIEVED BY THE ORDER OF PENALTY PASSED BY THE ASSESSING OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS HAS CANCELLED THE PENALTY. 4. NOW THE REVENUE IS IN APPEAL BEFORE THE ITAT. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. ON THE CONTRARY, THE LD AR OF THE ASSESSEE HAS REITERATED THE SUBMIS SIONS AS MADE IN THE WRITTEN BRIEF AND SUBMITTED AS UNDER:- SINCE THE QUANTUM APPEAL ON THE BASIS OF WHICH PENA LTY WAS LEVIED, HAS BEEN DECIDED IN FAVOUR OF ASSESSEE, PENALTY SO IMPOSED DOES NOT HOL D GOOD AND DESERVES TO BE DELETED. HOWEVER, SO FAR AS MERITS OF THE CASE ARE CONCERNED , IN VIEW OF ABOVE BACKGROUND, IT IS SUBMITTED THAT, ASSESSEE IS REGULARLY SHOWING INCOM E FROM ITS GEMS AND STONED BUSINESS UNDER THE HEAD BUSINESS INCOME AND THIS FACT HAS BEEN ADMITTED BY APPELLANT IN STATEMENTS RECORDED DURING SURVEY PROCEEDINGS ALSO AND THE SAME REMAINED UNCONTROVERTED. FURTHER, LD. AO HIMSELF HAS ACCEPTE D IN ASSESSMENT ORDER THAT THE PROPERTY SOLD WAS HELD BY APPELLANT AS INVESTMENT TILL THE YEAR IN WHICH CONSTRUCTION. HOWEVER, JUST BECAUSE CONSTRUCTION AND SUBSEQUENT S ALE WAS WITH PROFIT MOTIVE, THE SAME WAS TREATED AS ADVENTURE IN THE NATURE OF TRADE, WHICH WAS EVENTUALLY HELD TO BE TAXED AS CAPITAL GAIN HONBLE ITAT. FURTHER, IT IS CRYSTAL CLEAR FROM ABOVE FACTS THAT THE ISSUE UNDER APPEAL, I.E. WHETHER PROFIT ON SALE OF FLATS SHOULD BE TREATED AS CAPITAL GAIN OR BUSINESS INCOME IS A DEBATABLE ISSUE. IT IS AN ADMITTED FACT THAT APPELLANT SUO MOTO HAD DIS CLOSED CAPITAL GAIN IN RESPECT OF SALE OF FLATS IN THE RETURN OF INCOME ITSELF AND DISCLOSED ALL THE PARTICULARS RELATED TO SUCH INCOME, WHICH WAS HELD TO BE ADVENTURE IN THE NATURE OF TR ADE BY LD. AO. MATTER TRAVELLED UPTO ITAT, AND ULTIMATELY THE NATURE OF INCOME ON SALE O F FLATS WAS HELD TO BE UNDER CAPITAL GAIN. HOWEVER, THE ONLY MODIFICATION DIRECTED BY H ONBLE ITAT WAS THAT THE CAPITAL GAIN BE BIFURCATED IN TO TWO PARTS, I.E. (I) LONG TERM ON SALE OF LAND AS THE SAME WAS ACQUIRE I N JUNE 2001 ITA 1061/JP/2016_ ITO VS RAVI SANCHETI 4 (II) SHORT TERM ON SALE OF BUILDING AS CONSTRUCTION TOOK PLACE FROM MARCH 2005 ONWARDS. IN THIS REGARD, RELIANCE IS PLACED ON DECISION OF H ONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT V/S HARSHVARDHAN CHEMICALS AND MINERAL LTD. REPORTE D IN 259 ITR 212, WHEREIN AFFIRMING THE DECISION OF THE APPELLATE TRIBUNAL, IT HAS BEEN HEL D THAT NO PENALTY WAS LEVIABLE IN VIEW OF THE FINDING OF THE TRIBUNAL THAT WHEN THE ASSESSEE HAD CLAIMED DEDUCTION OF AN AMOUNT THAT WAS DEBATABLE IT COULD NOT BE SAID THAT THE ASSESSEE HA D CONCEALED ANY INCOME OR FURNISHED INACCURATE PARTICULARS FOR EVASION OF TAX, AND, IN VIEW OF THE FINDING OF THE TRIBUNAL, NO CASE WAS MADE OUT FOR INTERFERENCE. YOUR HONOUR WOULD APPRECIATE THAT SINCE ALL THE DET AILS IN RESPECT OF SALE OF FLATS WERE DISCLOSED IN RETURN OF INCOME ITSELF, THERE WAS NO CONCEALMEN T OF INCOME ON THE PART OF APPELLANT. HONBLE APEX COURT IN THE CASE OF RELIANCE PETRO PRODUCTS R EPORTED IN 323 ITR 158 (SC) HAS HELD THAT S. 271 (1) (C) APPLIES WHERE THE ASSESSEE HAS CONCEAL ED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THE PRESENT WAS NOT A CASE OF CONCEALMENT OF THE INCOME. AS REGARDS THE FURNISHING OF INACCURATE PAR TICULARS, NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE INCORRECT OR INACCURATE. THE WORDS INACCURATE PARTICULARS MEAN THAT THE DETAILS SUPPLIED IN THE RETURN ARE NOT ACCURATE, NO T EXACT OR CORRECT, NOT ACCORDING TO TRUTH OR ERRONEOUS . IN THE ABSENCE OF A FINDING BY THE AO THAT ANY DE TAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR F ALSE, THERE WOULD BE NO QUESTION OF INVITING PENALTY U/S 271(1)(C). FURTHER, CAPITAL GAIN WAS COMPUTED IN ACCORDANCE WI TH THE PROVISIONS OF THE ACT, THUS THERE WAS NO FURNISHING OF INACCURATE PARTICULARS OF INCOME A LSO. MERELY BECAUSE LD. AO WAS OF THE VIEW THAT THE SAID SALE TRANSACTION WAS ADVENTURE IN TH E NATURE OF TRADE, IT CANNOT BE CONCLUDED THAT THERE IS CONCEALMENT OR FURNISHING OF INACCURA TE PARTICULARS OF INCOME. FURTHER, THE HONBLE ITAT HAS EVENTUALLY HELD THE SAME AS CAPITAL GAIN , THUS IT CAN BE AT THE MOST DIFFERENCE OF OPINION AND IT IS TRITE LAW THAT NO PENALTY CAN BE LEVIED MERELY ON ACCOUNT OF DIFFERENCE OF OPINION. IN THIS REGARD, RELIANCE IS PLACE ON THE DELHI HIGH COURT IN CIT VS. EICHER GOODEARTH LTD. [2008] 170 TAXMAN 27 HOLDING THAT NO PENALTY BE LEVIED WITH REFERENCE TO DISALLOWANCE OF DEDUCTIONS FOR EXCESS ALLOWANCE OF DEPRECIATION AND DIVIDENDS (U/S 80M) IN THE ABSENCE OF ANY FINDING OF DEFAULT BY THE ASSESSEE IN FURNISHING MATERIAL FACT S OR PARTICULARS OF SUCH INCOME OR EXPENDITURE. IN THIS CASE THE ASSESSEE SUCCEEDED EVEN ON THE POI NT OF MISSING OF SATISFACTION ON THE BASIS OF DECISION IN CIT VS. RAM COMMERCIAL ENTERPRISES LTD. [2000] 122 TAXMAN 620/246 ITR 568 (DELHI). IN THE SIMILAR SITUATION THE DELHI HIGH COURT IN CI T VS. MAHABALESHWAR GAS & CHEMICAL (P) LTD. ITA 1061/JP/2016_ ITO VS RAVI SANCHETI 5 [2008] 170 TAXMAN 38 HELD THAT DISALLOWANCE OF DEPR ECIATION CLAIM IN ASSESSMENT IS A MATTER OF COURSE, OF DIFFERENCE OF OPINION AND DOES NOT INVIT E PENALTY ACTION, MORE SO IF THE ASSESSEE HAS MADE A BONA FIDE CLAIM FOR THE SAME IN THE RETURN O F INCOME AND HAS FURNISHED ALL THE PARTICULARS IN RESPECT OF SUCH CLAIM IN SUCH RETURN. 120 ITD 151 ASHOK GRIH UDYOG KENDRA (P) LTD. VS. AS STT. CIT (LUCK): -ASSESSMENT YEAR 2000-01 FOR RELEVANT ASSESSMENT YEAR, ASSESSEE-COMPANY FILED ITS RETURN WHEREIN IT CLAIMED DEDUCTION OF RS. 2.37 LAKHS AS L TC PAID TO AN EMPLOYEE ASSESSING OFFICER REJECTED ASSESSEES CLAIM HOLDING THAT AFORESAID EX PENDITURE WAS NOT INCURRED FOR PURPOSE OF BUSINESS OF ASSESSEE COMPANY ASSESSING OFFICER AL SO IMPOSED PENALTY ON ASSESSEE ON ACCOUNT OF CLAIMING WRONG DEDUCTION COMMISSIONER (APPEALS ) CONFIRMED LEVY OF PENALTY ON INSTANT APPEAL, IT WAS SEEN THAT REVENUE HAD NOT DOUBTED GE NUINENESS OF EXPENDITURE INCURRED AND IT WAS A MERE CASE OF DIFFERENCE OF OPINION BETWEEN AS SESSEE AND DEPARTMENT AS TO WHETHER AMOUNT IN QUESTION HAD BEEN INCURRED FOR PURPOSE OF BUSINESS OR NOT FURTHERMORE, ASSESSEES EXPLANATION IN RESPECT OF ENTRIES IN BOOKS WAS FOUN D TO BE BONA FIDE WHETHER, ON FACTS, IT COULD BE CONCLUDED THAT IT WAS ONLY A CASE OF ASSESSEES FAILURE TO ESTABLISH ITS CLAIM IN QUANTUM PROCEEDINGS, BUT THA T WOULD NOT AUTOMATICALLY BECOME A CASE FOR LEVY OF PENALTY FOR CONCEALMENT OF FURNISHING ACCUR ATE PARTICULARS HELD, YES WHETHER, THEREFORE, PENALTY LEVIED BY AUTHORITIES BELOW WAS TO BE CANCELLED HELD, YES. FURTHER, PENALTY PROCEEDINGS ARE NOT AUTOMATIC RATH ER INDEPENDENT WHEREIN, RECORDING OF SATISFACTION IS MUST. ON PERUSAL OF PAGE 2 OF PENAL TY ORDER ITSELF, IT IS CLEAR THAT NO SUCH SATISFACTION WAS RECORDED AND PENALTY WAS IMPOSED M ERELY STATING THAT SINCE INCOME UNDER THE SHORT TERM CAPITAL GAIN IS ASSESSED AT RS.56,19,787 /- AS AGAINST NIL DECLARED BY THE APPELLANT, THE APPELLANT HAS DELIBERATELY AND WILLFULLY FURNISHED INACCURATE PARTICULARS OF INCOME AND TRIED TO CONCEAL INCOME. HENCE, PENALTY U/S 271(1)(C) HAS B EEN LEVIED MERELY BY BORROWING THE OBSERVATIONS MADE IN THE QUANTUM ASSESSMENT PROCEED INGS AND NO INDEPENDENT SATISFACTION ON THE BASIS OF SEPARATE INQUIRIES WAS RECORDED SO AS TO ESTABLISH THAT THE INCOME WAS CONCEALED BY ASSESSEE OR THAT, INACCURATE PARTICULARS OF INCOME WERE FURNISHED. IT IS WELL ESTABLISHED LAW THAT THE QUANTUM PROCEEDINGS AND PENALTY PROCEEDINGS ARE TWO DISTINCT AND SEPARATE PROCEEDINGS AND THE OBSERVATIONS MADE IN QUANTUM PROCEEDINGS CA NNOT BE BORROWED AND PENALTY CANNOT BE IMPOSED MERELY ON THE BASIS OF ADDITIONS MADE IN TH E QUANTUM PROCEEDINGS ITA 1061/JP/2016_ ITO VS RAVI SANCHETI 6 THUS PENALTY LEVIED WITHOUT FULFILLING THE PRECONDI TION OF RECORDING THE SATISFACTION DESERVES TO BE DELETED. HE RELIED ON THE FOLLOWING CASE LAWS: (I) EILLY LILLY & COMPANY 312 ITR 225. (II) RAJESH C. GANDHI VS. ITO[ITA NO. 3158/MUM./20 09, DATED 09.03.2010] (MUM. ITAT) (III) 176 TAXMAN 211 CIT VS. RAMPUR ENGG. CO. LTD. (DELHI): 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LD. CIT(A) HAS CANCELLED THE PENALTY BY OBSERVING AS UNDER:- (VII) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLA NT, PENALTY ORDER AND THE MATERIAL PLACED ON RECORD. IT IS EVIDENT FR OM THE ABOVE DISCUSSION THAT THERE WERE DIFFERENT OPINIONS OF TH E AO, LD. CIT (A) AND THE HONBLE ITAT ON THE INSTANT ISSUE UNDER CONSIDE RATION. IN THE FIRST INSTANCE, THE AO TREATED THE PROFIT FROM SALE TRANS ACTION AS ADVENTURE IN THE NATURE OF TRADE AND DID NOT ALLOW DEDUCTION U/S 54F OF THE ACT, WHEREAS THE HON'BLE ITAT TREATED THE SAME AS INCOME ARISING OUT OF CAPITAL ASSET, ALLOWED THE DEDUCTION U/S 54F OF THE ACT BUT THE AMOUNT OF CAPITAL GAINS IS TO BE BIFURCATED BETWEEN LTCG A ND STCG. THE AO PASSED THE ASSESSMENT ORDER U/S254/L43(3) OF THE AC T DETERMINING CAPITAL GAINS AT RS. 52,37,030/- AND IN THE APPEAL, THE LD. CIT(A) ENHANCED THE CAPITAL GAINS TO RS. 87,68,657/- WHICH WAS AGAIN REDUCED TO THE FIGURES AS COMPUTED BY THE AO IN ORD ER PASSED U/S 254/143(3) BY THE HONBLE ITAT VIDE ITS ORDER DATED 18.03.2016, AS REFERRED EARLIER IN THIS ORDER. (VIII) IT MAY BE MENTIONED THAT THE HONBLE RAJAST HAN HIGH COURT IN THE CASE OF CIT V/S HARSHVARDHAN CHEMICALS AND MINERAL LTD. RE PORTED IN 259 ITR 212 HELD THAT NO PENALTY WAS LEVIABLE IN VIEW OF THE FI NDING OF THE TRIBUNAL THAT WHEN THE ASSESSEE HAD CLAIMED DED UCTION OF AN AMOUNT THAT WAS DEBATABLE, IT COULD NOT BE SAID THA T THE ASSESSEE HAD ITA 1061/JP/2016_ ITO VS RAVI SANCHETI 7 CONCEALED ANY INCOME OR FURNISHED INACCURATE PARTIC ULARS FOR EVASION OF TAX, AND, IN VIEW OF THE FINDING OF THE TRIBUNAL , NO CASE WAS MADE OUT FOR INTERFERENCE. (IX) FURTHER, CAPITAL GAIN WAS COMPUTED IN ACCORDA NCE WITH THE PROVISIONS OF THE ACT, THUS THERE WAS NO FURNISHING OF INACCUR ATE PARTICULARS OF INCOME ALSO. MERELY BECAUSE LD. AO WAS OF THE VIEW THAT THE SAID SALE TRANSACTION WAS ADVENTURE IN THE NATURE OF TRADE, IT CANNOT BE CONCLUDED THAT THERE IS CONCEALMENT OR FURNISHING O F INACCURATE PARTICULARS OF INCOME. FURTHER, THE HONBLE ITAT HA S EVENTUALLY HELD THE SAME AS CAPITAL GAIN, THUS IT CAN BE AT THE M OST DIFFERENCE OF OPINION AND IT IS TRITE LAW THAT NO PENALTY CAN BE LEVIED MERELY ON ACCOUNT OF DIFFERENCE OF OPINION. (X) FURTHER, ALL THE DETAILS IN RESPECT OF SALE OF CAPITAL ASSET WAS DISCLOSED IN RETURN OF INCOME ITSELF, THERE WAS NO CONCEALMEN T OF INCOME ON THE PART OF APPELLANT. IT MAY BE MENTIONED THAT THE HON BLE APEX COURT IN THE CASE OF RELIANCE PETRO PRODUCTS 323 ITR 158 (SC ) HAS HELD THAT S. 271 (1) (C) APPLIES WHERE THE ASSESSEE HAS CONCEAL ED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS O F SUCH INCOME. THE INSTANT CASE UNDER CONSIDERATION, IS NOT A CASE OF CONCEALMENT OF THE INCOME. AS REGARDS THE FURNISHING OF INACCURATE PAR TICULARS, NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE INC ORRECT OR INACCURATE. THE WORDS INACCURATE PARTICULARS MEAN THAT THE DETAILS SUPPLIED IN THE RETURN ARE NOT ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TRUTH OR ERRONEOUS. IN THE ABSENCE OF A FINDING BY THE AO THAT ANY DETAILS SUPPLIED BY THE APPELLANT IN ITS R ETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE, THERE WOULD BE NO QUESTION OF INVITING PENALTY U/S 271(1) (C). THEREFORE, IN VIEW OF THE ABOVE DISCUSSION AND LOOKING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THERE WAS NO JUSTIFICATION FO R IMPOSITION OF PENALTY ITA 1061/JP/2016_ ITO VS RAVI SANCHETI 8 U/S 271 (1) (C) OF THE ACT, HENCE THE SAME CANNOT B E SUSTAINED, THUS CANCELLED. FROM THE ABOVE, IT CAN BE CONSTRUED THAT THE PENALT Y IS LEVIED ON THE BASIS THAT SALE OF COMMERCIAL COMPLEX WAS ADVENTURE IN THE NATURE OF TRADE. HOWEVER, THE ASSESSEE CLAIMED IT SALE OF CAPITAL ASS ET AND COMPUTED CAPITAL GAIN. WE ARE IN AGREEMENT TO THE OBSERVATIO N OF LD. CIT(A) THAT IN VIEW OF THE FINDINGS OF THE TRIBUNAL IN QUANTUM PROCE EDINGS, THE PENALTY CANNOT BE LEVIED. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE INTO THE ORDER OF THE LD. CIT(A). ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/05/2017. SD/- SD/- HKKXPAN DQY HKKJR (BHAGCHAND) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18 TH MAY, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD 2(1), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI RAVI SANCHETI, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1061/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR