AASIA MANAGEMENT & CONSULTANCY P. LTD, MUMBAI V. ACIT 6(1), MUMBAI

ITA 1916/MUM/2010

• Counselvise Citation: 191619914 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 10-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY SHANKAR
• Assessee Lawyers: J P BAIRAGRA
• Keywords: Cost of acquisition; Wrong claim; Revised return; Bonafide mistake
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI P.M. JAGTAP AND SMT. ASHA VIJAYARAGHAV AN, JM I.T.A.NO.1916/MUM/2010 ASSESSMENT YEAR: 2006-07 M/S. AASIA MANAGEMENT & CONSULTANCY PVT. LTD., HINDUJA HOUSE 171, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400 016. PAN: AAACI 3370 C VS. THE ASST. COMMISSIONER OF INCOME- TAX-6(1),R.NO. 506, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J.P. BAIRAGRA RESPONDENT BY : SHRI VIJAY SHANKAR O R D E R PER P.M. JAGTAP, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS)-14, MU MBAI, DATED 08.01.2010 FOR THE ASSESSMENT YEAR 2006-07, WHEREBY HE CONFIRMED T HE PENALTY OF RS. 10,00,000/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED, INTER ALIA, IN THE BUSINESS OF TRADING IN SHARES AND SECU RITIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 30. 11.2006 DECLARING ITS TOTAL LOSS OF RS.9,86,12,719/-. IN THE SAID RETURN, EXEMPTION OF RS. 52,66,68,726/- WAS CLAIMED BY THE ASSESSEE UNDER SECTION 10(38) IN RES PECT OF LONG TERM CAPITAL GAIN ARISING FROM SALE OF SHARES. IN ORDER TO VERIFY ITS CLAIM FOR THE SAID EXEMPTION, THE ASSESSEE COMPANY WAS REQUIRED BY THE ASSESSING OFF ICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO SUBMIT THE DETAILS OF PUR CHASE AND SALE OF SHARES GIVING RISE TO THE LONG TERM CAPITAL GAIN. WHILE FURNISHING THE SAID DETAILS, IT WAS SUBMITTED BY THE ASSESSEE VIDE LETTER DATED 26.12.2 008 THAT A SHORT-TERM CAPITAL GAIN OF RS. 71,14,710/- ARISING FROM THE SALE OF IB L SHARES HAD BEEN INCORRECTLY AND INADVERTENTLY INCLUDED IN THE LONG TEM CAPITAL GAIN. IT WAS SUBMITTED BY THE ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 2 ASSESSEE THAT ITS CLAIM FOR EXEMPTION UNDER SECTION 10(38) IN RESPECT OF LONG TERM CAPITAL GAIN ARISING FROM SALE OF SHARES, THEREFORE , MAY BE RESTRICTED TO 51,95,54,016/- AND THE AMOUNT OF RS. 71,14,710/- CL AIMED AS EXEMPT UNDER SECTION 10(38) MAY BE TREATED AS SHORT-TERM CAPITAL GAIN. THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S.10(38) ACCORDINGLY WAS D ISALLOWED BY THE ASSESSING OFFICE TO THE EXTENT OF RS. 71,14,710/- IN THE ASSE SSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 26.12.2008. A NOTICE WA S ALSO ISSUED BY HIM REQUIRING THE ASSESSEE TO SHOW CAUSE AS TO WHY PENALTY U/S.27 1(1)(C) SHOULD NOT BE IMPOSED IN RESPECT OF THE ADDITION MADE TO ITS TOTA L INCOME BY WAY OF DISALLOWANCE OF EXEMPTION U/S.10(38) TO THE EXTENT OF RS.71,14,7 10/-. IN REPLY TO THE SAID NOTICE, THE FOLLOWING SUBMISSION WAS MADE ON BEHALF OF THE ASSESSEE BEFORE THE ASSESSING OFFICER IN WRITING :- NON-INCLUSION OF SHORT TERM CAPITAL GAIN OF RS. 71 .14 LACS I) IN THE LETTER DT. 26.12.2008 THE ASSESSEE HAD POINT ED OUT TO YOUR GOODSELF THAT THE SHORT TERM CAPITAL GAINS OF RS.71 .14 LACS WAS INADVERTENTLY THROUGH AN MISTAKE INCLUDED IN LONG T ERM CAPITAL GAINS THEREBY CLAIMING EXEMPTION IN RESPECT OF THE SAID GAIN. THE RELEVANT EXTRACTS OF THE LETTER 26.12.2008 ARE REPR ODUCED AS UNDER: IN THE COMPUTATION OF LONG TERM CAPITAL GAIN WHICH ARE CLAIMED AS EXEMPT U/S.10(38) OF THE IT ACT, A SHORT TERM CAPIT AL GAIN OF RS. 71.14.710/- ARISING ON THE SALE OF IBL SHARES STOOD INCORRECTLY AND INADVERTENTLY INCLUDED. RESULTANTLY THE LONG TERM CAPITAL GAINS WHICH ARE EXEMPT FROM TAX SHOULD BE COMPUTED AT RS.51,95,54,016/- AND THE SHORT TERM CAPITAL GAIN SHOULD BE TAKEN SHORT TERM CAPITAL GAIN AT RS. 71,.14,710/-. II) IT IS A SETTLED PROPOSITION THAT PENALTY U/S.271(1) (C) OF THE INCOME TAX ACT (ITA) CAN NOT BE LEVIED IN RESPECT OF SUCH INADVERTENT MISTAKES. THE GUJARAT HIGH COURT IN BTX CHEMICAL (P ) LD. VS. CIT (205 CTR 252) HAS UPHELD THE CANCELLATION OF PENALT Y U/S.271(1)(C) OF THE ITA BY HOLDING THAT WHERE DOUBLE DEDUCTION I N RESPECT OF LOSS OF STOCK BY FIRE HAS BEEN CLAIMED ON ACCOUNT O F A BONAFIDE MISTAKE, WHICH COULD BE EASILY DEDUCTED AND WOULD N OT HAVE RESULTED IN ANY ADVANTAGE TO THE ASSESSEE. IN CIT V S. LAXMI VILAS BANK LT. (2008) 303 ITR 428, THE MADRAS HIGH COURT UPHELD THE CANCELLATION OF PENALTY BY HOLDING THAT MISTAKE DUE TO MISPLACEMENT OF DECIMAL IN THE COMPUTATION DOES NOT TANTAMOUNT CONCEALMENT, SO AS TO ATTRACT PENALTY U/S.271(1)(C) OF THE ITA. IN CIT V/S. MILEX CABLE INDUSTRIES (2003) 261 ITR 675, THE GUJARAT HIGH COURT WHILE UPHOLDING THE CANCELLATION OF PENA LTY HAS HELD THAT ALTHOUGH THE ASSESSEE CONCEDED THE TOTALING MI STAKES, WHICH HAD RESULTED IN UNDER ASSESSMENT ONLY AFTER HE HAD RECEIVED THE NOTICE OF THE ASSESSING OFFICER (AO), POINTING OUT THE MISTAKES. TRIBUNAL HAVING COME TO A CONCLUSION THAT THE ASSES SEE HAD NO ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 3 INTENTION OF CONCEALING PARTICULARS OF HIS INCOME O R MISGUIDING THE AO. THE MADRAS HIGH COURT IN CIT V/S. CHOLAMANDALAM SECURITIES LTD. (2008) 296 ITR 408 HAS HELD THAT IN RESPECT OF A BONAFIDE UNINTENTIONAL MISTAKE, PENALTY U/S.271(1)(C) OF THE ITA COULD NOT BE LEVIED. THE ABOVE SUBMISSION MADE ON BEHALF OF THE ASSESSEE IN REPLY TO THE PENALTY NOTICE ISSUED BY HIM WAS NOT FOUND ACCEPTABLE BY T HE ASSESSING OFFICER FOR THE FOLLOWING REASONS: 1) THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.11.20 06 AND THE ASSESSEE WAS ENTITLED TO FILE REVISED RETURN STATIN G THE OMISSION. 2) IT WAS ONLY AFTER ISSUE OF NOTICE ASKING SPECIFIC D ETAILS OF CAPITAL GAINS, THE ASSESSEE ACKNOWLEDGED THE MISTAKE AND BE FORE THAT DURING THE PERIOD FROM THE DATE OF ISSUE NOTICE U/S .143(2) DATED 25.12.2008, THERE WAS NO VOLUNTARY ADMISSION OF MIS TAKE IN NOT DISCLOSING THE SHORT TERM CAPITAL GAIN OF RS.71,14, 710/-. 3) THE CASE LAWS CITED BY THE ASSESSEE ARE NOT AT ALL RELEVANT IN THE CASE OF THE ASSESSEE AND THE DECISIONS AS WELL WERE NOT SQUARELY APPLICABLE IN THE CASE OF THE ASSESSEE. 4) THE CASE OF ASSESSEE IS SQUARELY COVERED BY THE DEC ISION OF THE SUPREME COURT IN THE CASE OF UNION OF INDIA & OTHER S V/S. DHARMENDRA TEXTILES PROCESSORS & OTHERS 306 ITR 277 . FOR THE REASONS GIVEN ABOVE, THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF ITS INCOME TO T HE EXTENT OF RS. 71,14,710/- AND IMPOSED PENALTY OF RS. 10 LAKHS U/S.10(38) BEING 10 0% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED BY THE ASSESSEE BY MAKING A WRO NG CLAIM FOR EXEMPTION U/S.10(38) OF THE ACT. 3. THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/ S.271(1)(C) OF THE ACT WAS CHALLENGED BY THE ASSESSEE IN AN APPEAL FILED BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AND IN ADDITI ON TO THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER DURING THE COURSE OF P ENALTY PROCEEDINGS, IT WAS ALSO SUBMITTED ON BEHALF OF THE ASSESSEE BEFORE THE LEAR NED CIT(A) THAT DUE TO THE SITUATION OF THE HIGH TURN OVER OF STAFF AT KEY ACC OUNTING POSITION IN ITS ORGANIZATION, THE MISTAKE OF MISCLASSIFICATION HAD BEEN INADVERTENTLY OCCURRED WHICH COULD BE REALIZED ONLY WHEN THE RELEVANT DETA ILS WERE BEING PREPARED DURING THE COURSE OF ASSESSMENT PROCEEDING. IT WAS FURTHER SUBMITTED THAT A SHORT-TERM ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 4 CAPITAL GAIN ON SALE OF LISTED SHARES WAS WRONGLY C LAIMED TO BE EXEMPT AS LONG TERM CAPITAL GAIN U/S.10(38) THROUGH SHEER BONAFIDE HUMAN ERROR WHICH COULD NOT BE TREATED S CONCEALMENT TO IMPOSE PENALTY. IT WAS SUBMITTED THAT THERE WAS NEITHER ANY CONCEALMENT OF PARTICULARS OF INCOME BY THE ASSESSEE NOR FURNISHING OF ANY INACCURATE PARTICULARS OF ITS INCOME WARRANTING LEVY OF PENALTY U/S.271(1)(C). IT WAS ALSO SUBMITTED THAT THE ASSESSEE NEVER ATTEM PTED TO KEEP OFF THE PARTICULARS OF CAPITAL GAINS FROM THE SIGHT OF THE DEPARTMENT IN ORDER TO PREVENT THE DISCOVERY OF THE SAME. RELIANCE WAS PLACED ON BEHALF OF THE ASSESSEE ON VARIOUS JUDICIAL PRONOUNCEMENTS TO SUBMIT THAT WHEN THE PRIMARY FACTS OF THE CASE WERE CORRECTLY FURNISHED, THERE WAS NO JUSTIFICATIO N TO IMPOSE PENALTY U/S.271(1)(C) MERELY BECAUSE THERE WAS SOME ERROR OR MISTAKE IN C OMPUTATION OF TOTAL INCOME CHARGEABLE TO TAX. 4. THE ABOVE SUBMISSIONS MADE ON BEHALF OF THE ASSE SSEE BEFORE HIM WERE NOT FOUND ACCEPTABLE BEFORE THE LEARNED CIT(A) AND HE PROCEEDED TO CONFIRM THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S.271(1) (C) FOR THE FOLLOWING REASONS GIVEN IN PARA 6 OF HIS IMPUGNED ORDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND ALSO PERUSED THE ORDER OF THE ASSESSING OFFICER. IN THIS CASE, THE SHORT TERM CAPITAL GAINS OF RS. 71.14 LAKHS WAS INCLUDED IN LO NG TERM CAPITAL GAINS., THEREBY CLAIMING EXEMPTION IN RESPECT O THE SAID GA INS IN THE RETURN OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.14393), THE APPELLANT CAME TO KNOW THIS MISTAKE AND VIDE LETTER DATED 26.12.2008 HAS COMMUNICATED THE MISTAKE TO THE ASSESSING OFFICER. THE RELEVANT PORTION OF THE LETTER IS AS UNDER: IN THE COMPUTATION F LONG TERM CAPITAL GAIN WHICH ARE CLAIMED AS EXEMPT U/S.10(38) OF THE I.T.ACT A SHORT TERM CAPITAL GAIN OF RS. 71,14,000/- ARISING ON THE SALE OF IBL SHARES STOOD INCORRECTLY AND INA DVERTENTLY INCLUDED. RESULTANTLY THE LONG TERM CAPITAL GAINS WHICH ARE E XEMPT FROM TAX SHOULD BE COMPUTED AT RS. 51,95,54,016/- AND THE SHORT TER M CAPITAL GAIN SHOULD BE TAKEN SHORT TERM CAPITAL GAIN AT RS.71,14,710/-. THE APPELLANT SUBMITTED THAT THE PERIOD FRO FILING OF A REVISED RETURN OF INCOME HAD ELAPSED THAT IS WHY THE APPELLANT IMMEDI ATELY COMMUNICATED TO THE ASSESSING OFFICER ABOUT THE INADVERTENT MIST AKE OF MISCLASSIFICATION, EXPLAINING THE CIRCUMSTANCES IN WHICH THE MISTAKE H AD OCCURRED VIDE ITS ABOVE REFERRED LETTER. THE ASSESSING OFFICER HAS I MPOSED A PENALTY U/S.271(1)(C) IN RESPECT OF MISCLASSIFICATION OF SH ORT TERM CAPITAL GAIN ARISING ON SALE OF SHARES OF INDUSIND BANK LIMITED OF RS.71,14,710/-. ACCORDING TO ASSESSEE MISTAKENLY CLAIMED AS EXEMPT UNDER THE LONG TERM CAPITAL GAINS. ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 5 THE REASON FOR THE SAID MISTAKE GIVEN BY THE APPEL LANT IS THE NON- AVAILABILITY OF THE TAXATION MANAGER AND MANAGER AC COUNTS IN ITS ORGANIZATION. IT IS ONLY AT THE END OF AUGUST 2006, THAT THE APPELLANT COULD FIND OUT SUITABLE CANDIDATES TO FILL IN THESE VACAN CIES. THE MANAGER ACCOUNTS (MR. UMESH KAMDAR) WHO HAD MADE CLASSIFICA TION OF LONG TERM AND SHORT TERM CAPITAL GAINS A5 THE TIME OF FILING OF THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, HAD LEFT THE APPELLAN TS ORGANIZATION IN SEPTEMBER 2007. THE NEW PERSON (MR. PHADKE), APPOIN TED IN HIS PACE ALSO LEFT THE ORGANIZATION ABRUPTLY IN THE MONTH OF DECE MBER 2008. IT WAS THESE SET OF CIRCUMSTANCES THAT LED TO AN INADVERTE NT BONAFIDE MISTAKE IN MISCLASSIFICATION OF THE SAID SHORT TERM CAPITAL GA IN, WHICH WAS INCORRECTLY CLAIMED TO BE AN EXEMPT LONG TERM CAPITAL GAIN. THE APPELLANT RELIED UPON THE DECISION OF THE MADRAS HIGH COURT IN CIT V. CHO LAMANDALAM SECURITIES LTD. (2008) 296 ITR 408 WHEREIN IT IS HELD THAT IN RESPECT OF A BONAFIDE UNINTENTIONAL MISTAKE PENALTY U/S.271(1)(C) SHOULD NOT BE LEVIED. FROM THE ABOVE FACTS IT IS CLEAR THAT THE MISTAKE WAS DETECTED BY THE ASSESSING OFFICER DURING THE COURSE OF SCRUTINY ASS ESSMENT, AND THEREAFTER BEING ADMITTED AND RECTIFIED BY THE APPELLANT. HAD THE CASE NOT BEEN SCRUTINIZED, THE MISTAKE COULD NOT BE RECTIFIED AND THERE WOULD HAVE BEEN LOSS OF REVENUE. THE CASE LAWS CITED BY THE APPELL ANT ARE NOT AT ALL RELEVANT IN THE CASE OF THE APPELLANT AND I FULLY A GREE WITH THE ASSESSING OFFICER THAT THE APPELLANTS CASE IS SQUARELY COVE RED BY THE DECISION OF THE HONOURABLE SUPREME COURT IN THE CASE OF UNION OF IN DIA AND ORS. VS. DHARMENDRA TEXTILE PROCESSORS AND OTHERS 306 ITR 27 7 WHEREIN THE APEX COURT HAS HELD AS UNDER: THE REVENUE HAS PUT GREATER FAITH ON THE ASSESSEE WITH THE EXPECTATION THAT TRUE AND FULL PARTICULARS REQUIRING CORRECT IN COME WILL BE FILED BY THE ASSESSEE. FOR THIS REASON EACH AND EVERY CASE IS NO T BEING SCRUTINIZED TO ASCERTAIN THE CORRECTNESS OF THE PARTICULARS OF INC OME FURNISHED BY THE ASSESSEE. IN THE CIRCUMSTANCES, THE RESPONSIBILITY OF FURNISHING CORRECT PARTICULARS OF INCOME IS MORE ON THE ASSESSEE. THER EFORE ANY RETURN .PAYING LESSER THAN DUE TAXES IS AN ACT OF FURNIS HING OF INACCURATE PARTICULARS OF INCOME ON THE PART OF THE ASSESSEE. IN VIEW OF THE ABOVE, THE ACTION OF THE ASSESSING O FFICER LEVYING THE PENALTY U/S.271(1)(C) APPEARS TO BE JUSTIFIED. THEREFORE, THE SAME IS CONFIRMED. IN VIEW OF THE ABOVE, THE ACTION OF THE ASSESSING O FFICER LEVYING THE PENALTY U/S.271(1) APPEARS TO BE JUSTIFIED. THEREFORE, THE SAME IS CONFIRMED. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A), THE A SSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE MISTAKE IN CLAIMING THE SHORT-TERM CAPITAL GAIN AS LONG TERM C APITAL GAIN EXEMPT U/S.10(38) WAS REALIZED BY THE ASSESSEE WHILE PREPARING THE DE TAILS REQUIRED BY THE ASSESSING OFFICER DURING THE CURSE OF ASSESSMENT PROCEEDINGS. HE SUBMITTED THAT THIS MISTAKE WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER BY THE ASSESSEE COMPANY ITSELF AND THE CLAIM WRONGLY MADE FOR EXEM PTION U/S. 10(38) WAS ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 6 WITHDRAWN BY IT VOLUNTARILY. HE SUBMITTED THAT THE RE WAS ONLY ONE INSTANCE OF SHORT TERM CAPITAL GAIN AND THE SAME WAS INADVERTEN TLY INCLUDED IN THE AMOUNT OF LONG TERM CAPITAL GAIN DUE TO MIS-CLASSIFICATION. H E CONTENDED THAT THE ENTIRE AMOUNT OF PROFIT ON SALE OF INVESTMENT THUS WAS TAK EN AS LONG TERM CAPITAL GAINS WHILE CLAIMING EXEMPTION U/S.10(38). HE INVITED OU R ATTENTION TO THE DETAILS OF LONG TERM CAPITAL GAINS FURNISHED BY THE ASSESSEE ( COPY PLACED AT PAGE NO. 39 OF THE PAPER BOOK) TO SHOW THAT ALL THE RELEVANT DETAI LS OF CAPITAL GAINS WERE FULLY AND TRULY FURNISHED BY THE ASSESSEE. HE CONTENDED THAT EXEMPTION U/S.10(38) IN RESPECT OF ONE INSTANCE OF SHORT TERM CAPITAL GAIN THUS WAS CLAIMED INADVERTENTLY BY MISTAKE AND KEEPING IN VIEW THAT THERE WAS HUGE LOSS, THE ASSESSEE NEVER INTENDED TO EVADE ANY TAX BY MAKING THE SAID CLAIM. HE CONTENDED THAT THE CONDUCT OF THE ASSESSEE OF WITHDRAWING A WRONG CLAI M OF EXEMPTION MADE BY IT IMMEDIATELY AFTER COMING THE SAME TO ITS NOTICE, O N THE OTHER HAND, SHOWS ITS BONAFIDE AND HAVING REGARD TO ALL THE FACTS OF THE ASSESSEES CASE, THERE WAS NO JUSTIFICATION IN IMPOSING PENALTY U/S.271(1)(C) OF THE ACT. HE, THEREFORE, URGED THAT THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CO NFIRMED BY THE LEARNED CIT(A) MAY BE CANCELLED. IN SUPPORT OF HIS CONTENTION, TH E LEARNED COUNSEL FOR THE ASSESSEE RELIED, INTER ALIA, ON THE DECISION OF TH E HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCTS PVT. LTD.(322 ITR 1 58)(SC). 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE DETAILS FURNISHED BY THE ASSESSEE IN RESPE CT OF LONG TERM CAPITAL GAINS PLACED AT PAGE 39 OF THE ASSESSEES PAPER BOOK CANN OT BE REGARDED AS FULL AND TRUE DETAILS. HE INVITED OUT ATTENTION TO THE SAID DETAILS AND POINTED OUT THAT IN THE ABSENCE OF THE DATES OF RELEVANT TRANSACTIONS GIVEN THEREIN, IT WAS NOT POSSIBLE TO ASCERTAIN WHETHER THE RELEVANT TRANSACTIONS GAVE RI SE TO A LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN. HE SUBMITTED THAT ONLY WH EN THE SPECIFIC INFORMATION WAS CALLED FOR BY THE ASSESSING OFFICER IN ORDER TO VER IFY THE CLAIM OF THE ASSESSEE FOR ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 7 EXEMPTION U/S.10(38), THE WRONG CLAIM MADE BY THE A SSESSEE FOR EXEMPTION U/S.10(38) BY SHOWING SHORT-TERM CAPITAL GAIN AS LO NG TERM CAPITAL GAIN WAS DETECTED AND THE ASSESSEE WAS LET WITH NO OPTION BU T TO WITHDRAW ITS CLAIM FOR THE SAID EXEMPTION WHICH WAS PATENTLY WRONG. HE CONTEN DED THAT THIS MISTAKE OF MIS- CLASSIFICATION OF SHORT TERM CAPITAL GAIN AS LONG T EM CAPITAL GAIN CANNOT BE ATTRIBUTED TO CHANGE OF STAFF AS SOUGHT TO BE CONTE NDED ON BEHALF OF THE ASSESSEE. HE SUBMITTED THAT THERE IS NOTHING TO SHOW THAT THI S MISTAKE OF MISCLASSIFICATION WAS BONAFIDE AND IN THE ABSENCE OF RELEVANT DETAILS FURNISHED BY THE ASSESSEE ALONG WITH ITS RETURN OF INCOME, IT IS NOT A CASE W HERE THE ASSESSEE CAN BE SAID TO HAVE FURNISHED ALL THE RELEVANT DETAILS RELATING TO ITS CLAIM FOR LONG TERM CAPITA GAIN FULLY AND TRULY. HE CONTENDED THAT THE CASE OF THE ASSESSEE THUS IS A FIT CASE TO IMPOSE PENALTY U/S.271(1)(C) AS THERE WAS FURNISHI NG OF INACCURATE PARTICULARS OF ITS INCOME BY THE ASSESSEE BY MAKING WRONG CLAIM FO R EXEMPTION U/S.10(38) OF THE ACT. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT WHILE CLAI MING EXEMPTION U/S.10(38) IN RESPECT OF LONG TERM CAPITAL GAIN, A SHORT TERM CAP ITAL GAIN OF RS. 71,14,710/- WAS ALSO INCLUDED BY THE ASSESSEE IN THE AMOUNT OF LONG TERM CAPITAL GAIN. ALTHOUGH AN ATTEMPT HAS BEEN MADE ON BEHALF OF THE ASSESSEE TO SUBMIT BEFORE THE AUTHORITIES BELOW AS WELL AS BEFORE US THAT THE SAI D MISTAKE IN MISCLASSIFYING SHORT TERM CAPITAL GAIN AS LONG TERM CAPITAL GAIN WAS ATT RIBUTABLE TO HUMAN ERROR INADVERTENTLY OCCURRED, THERE IS NOTING ON RECORD T O SUPPORT AND SUBSTANTIATE THE SAME. THE DETAILS FURNISHED BY THE ASSESSEE ALONG WITH ITS RETURN OF INCOME WHILE MAKING THE CLAIM FOR EXEMPTION OF LONG TERM CAPITAL GAIN ARE PLACED AT PAGE NO. 39 OF THE ASSESSEES PAPER BOOK AND A PERUSAL OF TH E SAME SHOWS THAT THE VERY MATERIAL AND RELEVANT DETAILS IN THE FORM OF CORRES PONDING DATES OF PURCHASE AND SALE OF SHARES WERE NOT GIVEN THEREIN. AS RIGHTLY CONTENDED BY THE LEARNED ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 8 DEPARTMENTAL REPRESENTATIVE, IT WAS NOT POSSIBLE TO ASCERTAIN WHETHER THE CAPITAL GAIN ARISING FROM THE RELEVANT TRANSACTION OF PURC HASE AND SALE OF SHARES WAS LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN IN THE ABSENCE OF THE SAID DETAILS. IT, THEREFORE, CANNOT BE SAID THAT ALL THE RELEVANT PAR TICULARS RELATING TO ITS CLAIM FOR EXEMPTION U/S.10(38) ON ACCOUNT OF LONG TERM CAPIT AL GAIN WERE TRULY AN FULLY FURNISHED BY THE ASSESSEE. WHETHER A TRANSACTION O F PURCHASE AND SALE OF SHARES HAS RESULTED IN SHORT TERM OR LONG TERM CAPITAL GAI N WOULD DEPEND ON THE CORRESPONDING DATES OF PURCHASE AND SALE OF SHARES AND IF SUCH DATES ARE NOT FURNISHED BY THE ASSESSEE ALONG WITH THE CORRESPOND ING TRANSACTION OF PURCHASE AND SALE OF SHARES, IT CANNOT BE SAID THAT THE ASSE SSEE HAS FURNISHED FULL AND TRUE PARTICULARS RELATING TO ITS CLAIM FOR EXEMPTION U/S .10(38) IN RESPECT OF LONG TERM CAPITAL GAIN. MOREOVER, THERE IS NOTING BROUGHT ON RECORD BY THE ASSESSEE TO SHOW AS TO HOW THE MISTAKE COMMITTED BY IT IN MISCLASSIF YING SHORT TERM CAPITAL GAIN AS LONG TERM CAPITAL GAIN WAS A BONAFIDE ONE. IN OUR OPINION, IF THERE WAS NO CONFUSION AS REGARDS THE CORRESPONDING DATES OF PUR CHASE AND SALE OF SHARES, THERE WAS NO REASON OR BASIS TO SHOW THAT A MISTAK E IN MISCLASSIFYING THE SHORT TERM CAPITAL GAIN AS LONG TERM CAPITAL GAIN WAS BON AFIDE OR THE SAME WAS ATTRIBUTABLE TO INADVERTENT HUMAN ERROR. THE FACTS BORNE OUT FROM RECORD CLEARLY SHOW THAT THE WRONG CLAIM MADE BY THE ASSESSEE FOR EXEMPTION U/S.10(38) IN RESPECT OF SHORT TERM CAPITAL GAIN WAS DETECTED AS A RESULT OF ENQUIRY MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS BY CALLING FOR THE SPECIFIC DETAILS AND LEFT WITH NO OTHER CHOICES THE ASSESSEE HAD TO WITHDRAW THE SAID CLAIM WRONGLY MADE WHICH, IN OUR OPINION, CANN OT BE REGARDED AS A VOLUNTARY ACT. 8. IT IS OBSERVED THAT EVEN THE VARIOUS JUDICIAL PR ONOUNCEMENTS CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE ARE OF NO HELP TO THE ASSESSEES CASE AS THE SAME ARE CLEARLY DISTINGUISHABLE ON FACTS. FOR INSTANCE , IN THE CASE OF CIT VS. MILEX ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 9 CABLE INDUSTRIES (261 ITR 675)(GUJ.), TOTALING MIST AKES COMMITTED WERE DETECTED BY THE ASSESSEE HIMSELF WHILE PREPARING THE ACCOUN TS FOR THE SUBSEQUENT YEAR AND IMMEDIATELY THEREAFTER, THE ASSESSEE INFORMED ABOUT THE SAID MISTAKE TO THE ASSESSING OFFICER VOLUNTARILY WITHOUT THERE BEING A NY ENQUIRY MADE BY THE AO. IN THE CASE OF MRS. NAGMA M. KANCHWALA V. ITO (24 DTR 369)(MUM) ALTHOUGH WRONG CALCULATION OF CAPITAL GAIN WAS FOUND TO BE MADE BY THE ASSESSEE BY CLAIMING HIGHER INDEXATION OF THE COST OF ACQUISITION, ALL T HE RELEVANT PARTICULARS AND DETAILS RELATING TO THE SAID CLAIM WERE FULLY AND TRULY FUR NISHED BY THE ASSESSEE AND IT WAS, THEREFORE, HELD THAT CONCEALMENT PENALTY COULD NOT BE IMPOSED U/S.271(1)(C). SIMILARLY, IN THE CASE OF RELIANCE PETROPRODUCTS PV T. LTD. (SURPA), THE ASSESSEE WAS FOUND TO HAVE FURNISHED ALL THE RELEVANT PARTICULAR S RELATING TO THE CLAIM TRULY AND FULLY AND IT WAS, THEREFORE, HELD BY THE HONBLE SU PREME COURT THAT MERELY BECAUSE THE ASSESSEE HAD CLAIMED THE EXPENDITURE, WHICH CLA IM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO THE REVENUE, THAT BY ITSELF WOULD NOT ATTRACT THE PENALTY U/S.271(1)(C). AS SUCH, CONSIDERING ALL THE FACTS O F THE CASE, WE ARE OF THE CONSIDERED OPINION THAT IT WAS A CASE OF FURNISHING OF INACCURATE PARTICULARS OF ITS INCOME BY THE ASSESSEE BY CLAIMING A WRONG EXEMPTIO N IN RESPECT OF SHORT TERM CAPITAL GAIN U/S.10(38) MAKING IT LIABLE TO PENALTY U/S.271(1)(C) AS RIGHTLY HELD BY THE AUTHORITIES BELOW. IN THAT VIEW OF THE MATTER, WE UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT(A) CONFIRMING THE PENALTY IMPOSED B Y THE A.O. UNDER SECTION 271(1)(C) AND DISMISS THIS APPEAL FILED BY THE ASSE SSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF APRIL, 2011. SD. SD. ASHA VIJAYARAGHAVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED THE 13 TH APRIL, 2011. KN ITA NO.1916/M/2010 M/S. AASIA MANAGEMENT & CONSULTANCY P.LTD. 10 COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT -6, MUMBAI. 4. THE CIT(A)-XIV, MUMBAI 5. THE DR A BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI