URMILA BHABERA, MUMBAI V. ASST CIT 20(3), MUMBAI

ITA 5177/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3832 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 12-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KUMARAN
• Assessee Lawyers: PAYAL GADA
• Keywords: Business income; Income from undisclosed sources; Salary income; Cost of acquisition; Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI BEFORE SRI JASON P. BOAZ, AM AND SRI SANDEEP GOSAIN , JM ITA NO.5177/MUM/2014 (ASSESSMENT YEAR: 2006-07) MRS. URMILA BHABHERA, 901/902, SHANGHVI VILLA, S. V. ROAD, ANDHERI (W), MUMBAI 400 058 VS. THE ASST. COMMISSIONER OF INCOME TAX -20(3), MUMBAI, ROOM NO.506, 5 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400 012 PAN: A A JPB 6192K APPELLANT .. RESPONDENT APPELLANT BY MS. PAYAL GADA, AR RESPONDENT BY MR. S. S. KUMARAN, DR DATE OF HEARING 31-05-2016 DATE OF PRONOUNCEMENT 10 - 08 - 2016 O R D E R PER SANDEEP GOSAIN, JM : THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AG AINST THE ORDER OF THE LEARNED CIT (A)-31, MUMBAI DATED 17-07 -2014 PASSED IN APPEAL NO.CIT(A)-31/IT-37/ACIT-20(3)/2012-13 FOR AS SESSMENT YEAR 2006-07 WHEREIN THE LEARNED CIT (A) HAS CONFIRMED P ENALTY OF RS.6,93,053/- LEVIED BY THE ASSISTANT COMMISSIONER OF INCOME TAX -20(3), MUMBAI U/S 271 (1) (C) OF THE ACT , ON THE FOLLOWIN G GROUNDS:- 1. THE COMMISSIONER OF INCOME TAX (APPEALS -31 ( HEREINAFTER REFERRED TO AS THE CIT (A)) ERRED IN CONFIRMING PEN ALTY OF RS.6,93,053 LEVIED BY THE ASSISTANT COMMISSIONER OF INCOME-TAX- 20(3), MUMBAI (HEREINAFTER REFERRED TO AS THE ASSES SING OFFICER) UNDER SECTION 271 (1) (C) OF THE ACT. THE APPELLANT CONTENDS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSING OFFICER OUGHT NOT TO HAVE LEVIED THE IMPUGNED PENALTY UNDER SECTION 271 (1) ( C) OF THE ACT. ITA NO.5177/MUM/2014 2 2. THE CIT (A) ERRED IN CONFIRMING ACTION OF THE AS SESSING OFFICER IN LEVYING PENALTY ON THE BASIS OF INCOME-T AX INCLUDING SURCHARGE AND EDUCATION CESS. THE APPELLANT CONTENDS THAT SURCHARGE ON INCOME-TAX AND EDUCATION CESS CANNOT BE CONSIDERED IN LEVYING THE PENALTY AS THE SAME IS NOT PART OF TAX. 3. THE APPELLANT CONTENDS THAT THE IMPUGNED ORDER O F PENALTY IS BAD IN LAW AND REQUIRES TO BE QUASHED. WITHOUT PREJUDICE TO THE ABOVE 4. THE CIT (A) ERRED IN CONFIRMING PENALTY EVEN ON THE ADDITION OF ALLEGED COMMISSION WHICH WAS DELETED IN QUANTUM APPEAL BY THE HONOURABLE TRIBUNAL. THE APPELLANT CONTENDS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) OUGHT TO HAVE D IRECTED TO REDUCE THE PENALTY AMOUNT PROPORTIONATELY. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER OR AMEN D THE AFORESTATED GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E INDIVIDUAL EARNING INCOME FROM SALARY, BUSINESS INCOME AND CAPITAL GAI NS FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006-07 ON 05-10-200 6 DECLARING TOTAL INCOME AT RS.75,93,546/-.THE RETURN WAS SUBSEQUENTL Y PROCESSED AND CASE WAS SELECTED FOR SCRUTINY. THE ASSESSMENT WAS COMPLETED U/S 143 (3) OF THE ACT VIDE ORDER DATED 28-11-2008 WHEREIN APART FROM CAPITAL GAINS ON SALE OF SHARES INCOME SHOWN BY THE ASSESSE E AS INCOME FROM BUSINESS THE AO HELD THAT THE LONG TERM CAPITAL G AINS OF RS.23,58,900/- IN RESPECT OF INTER-LINK FINANCE LTD. (ILFL) SHARES AS BOGUS INCOME AND ALSO MADE ADDITION OF RS.1,17,945/- ON ACCOUNT OF C OMMISSION PAID FOR ARRANGING THE SAID BOGUS INCOME. ON APPEAL THE LEAR NED CIT (A) HELD THAT ITA NO.5177/MUM/2014 3 THE AMOUNT OF RS.23,58,900/- ON ACCOUNT OF LTCG AS BOGUS AS WELL AS THE ADDITION ON ACCOUNT OF COMMISSION PAID FOR RS.1 ,17,945/-. SUBSEQUENTLY, THE AO TOOK UP PENALTY PROCEEDINGS AN D ASKED THE ASSESSEE TO SHOW CAUSE WHY PENALTY U/S 271 (1) (C) OF THE ACT SHOULD NOT BE LEVIED WITH REFERENCE TO THE ADDITIONS SUSTAINED BY THE LEARNED CIT (A). FINDING THE EXPLANATIONS OF THE ASSESSEE UNSATISFAC TORY, THE AO PROCEEDED TO LEVY PENALTY OF RS.6,93,053/- VIDE OR DER DATED 30 TH MARCH, 2012. AGGRIEVED BY THE ORDER OF PENALTY, THE ASSESS EE PREFERRED APPEAL BEFORE THE LEARNED CIT (A). AFTER HEARING BOTH THE PARTIES THE LEARNED CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE VIDE O RDER DATED 17-07- 2014 THEREBY UPHOLDING THE PENALTY OF RS.6,93,053/ - LEVIED BY THE AO. AGGRIEVED FROM THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE US ON THE GROUN DS MENTIONED HEREINABOVE. 4. ALL THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE INTERRELATED AND INTERCONNECTED; THEREFORE, WE DEEM IT APPROPRIA TE TO ADJUDICATE THE SAME TOGETHER AFTER HEARING THE LEARNED COUNSELS OF BOTH THE PARTIES AND ALSO CAREFUL PERUSAL OF THE MATERIALS PLACED ON REC ORD AS WELL AS THE ORDERS OF THE REVENUE AUTHORITIES. IT IS IMPORTANT TO MENTION HERE THAT THE LEARNED CIT (A) WHILE UPHOLDING THE PENALTY LEVIED BY THE AO FOR RS.6,93,053/-271 (1) (C) OF THE ACT HAS ALSO DISCUS SED THE ORDER PASSED BY THE TRIBUNAL IN QUANTUM PROCEEDINGS. THEREFORE, BEFORE DECIDING THE ISSUE, IT IS NECESSARY TO REFER TO THE ORDER OF THE TRIBUNAL PASSED IN APPEAL BEING ITA NO.2081/MUM/2011 DATED 20-08-2013 FOR ASS ESSMENT YEAR ITA NO.5177/MUM/2014 4 2006-07. THE RELEVANT PORTION OF THE SAID ORDER IS REPRODUCED HEREIN BELOW:- 7.2 REFERRING TO THE ABOVE ORDER OF THE CIT (A) IT WAS THE SUBMISSION THAT THERE IS NO BASIS FOR TREATING THE AMOUNT OF PURCHASE AT RS.22,48,000/- AND CONFIRM THE ADDITION AS THE ASSESSEE GOT THE SHARES TRANSFERRED INTO DEMAT ACCO UNT BY 31.03.2005, WHICH FACT WAS ALSO ACCEPTED BY THE LD. CIT (A). IF THE SHARES ARE PURCHASED AS ALLEGED BY THE CIT (A) THEN , THE ADDITION OF THE AMOUNT CANNOT BE MADE IN THIS ASSESSMENT YEAR A S THE SAID PURCHASES ARE MADE IN ASSESSMENT YEAR 2005-06. IT W AS SUBMITTED THAT ASSESSEE PURCHASED THE SHARES ON 02.04.2004 AN D SOLD THEM ON 18.04.2005 AND CORRECTLY OFFERED THE LONG TERM C APITAL GAIN. THE LD. DR HOWEVER RELIED ON THE ORDERS ABOVE. 7.3 WE HAVE CONSIDERED THE ISSUE. IT IS A FACT THAT T HE ASSESSEE GOT THE SHARES TRANSFERRED TO DEMAT ACCOUNT AS ON 3 1.03.2005 AND SOLD AS ON 18.04.2005. THEREFORE, ASSESSING THE PUR CHASES COST EITHER AT RS.1,36,000/- OR AT RS.22,48,000/- AS DIR ECTED BY THE LD. CIT (A) DOES NOT ARISE IN THIS YEAR, AS THE TRANSAC TION OCCURRED BEFORE 31.03.2005 I.E. IN ASSESSMENT YEAR 2005-06. THEREFORE, ORDER OF CIT (A) ON THIS ISSUE SUSTAINING ADDITION OF SO CALLED PURCHASE COST, CANNOT BE UPHELD. SINCE THERE IS NO VERIFIABLE EVIDENCE TO ESTABLISH WHETHER THE ASSESSEE PURCHASE D SHARES ON 02.04.2004 AS CLAIMED, IT CAN AT BEST BE STATED THA T ASSESSEE PURCHASED THE SHARES AND TRANSFERRED THEM INTO DEMA T ACCOUNT AS ON 31.03.2005. PARTIALLY MODIFYING THE ORDER OF AO AND CIT (A), WE ARE OF THE OPINION THAT THE GAIN EARNED BY THE ASSE SSEE CAN BE BROUGHT TO TAX AS CAPITAL GAIN BUT AS SHORT TERM CA PITAL GAIN, AS THERE IS EVIDENCE OF PURCHASE AS ON 31.03.2005 AND SALE O N 18.04.2005. SINCE ASSESSEE CLAIMED ONLY AMOUNT OF RS.1,36,000/- AS COST, THERE IS O NEED FOR ESTIMATING THE COST AT RS.22,48 ,000/- ON PRESUMPTIONS AS WAS DONE BY THE CIT (A). THE TRANSA CTION CAN BE MUCH BEFORE THAT DATE ALSO AS IT WILL TAKE TIME TO GET THEM INTO DEMAT ACCOUNT. IN THE CIRCUMSTANCES OF THE CASE, CO NSIDERING THE EVIDENCE ON RECORD, WE DIRECT THE AO TO TREAT THE G AIN OFFERED BY THE ASSESSEE AS SHORT TERM CAPITAL GAIN AND DETERMINE T HE TAX LIABILITY ACCORDINGLY. GROUND NO.4 IS ALLOWED PARTIALLY. 5. THE LEARNED CIT (A) WHILE UPHOLDING THE ORDER OF LEVY OF PENALTY HAS DISCUSSED THE FACTS OF THE CASE AND DRAWN HIS CONC LUSION AT PARA 5.8 OF HIS ORDER WHICH IS REPRODUCED BELOW:- 5.8 IN THE INSTANT CASE, THE APPELLANT DECLARED AN AMOUNT OF RS.23,58,900/- SHOWN AS DERIVED FROM TRANSACTIONS I N SHARES OF ITA NO.5177/MUM/2014 5 INTER-LINK FINANCE LTD. AS LONG TERM CAPITAL GAINS EXEMPT U/S 10(38). THE AO EXAMINED THE CLAIM AND FOUND IT UNTENABLE AN D SO HELD THE AMOUNT TO BE INCOME FROM UNDISCLOSED SOURCES. THE T RIBUNAL HELD THAT THE AMOUNT IN QUESTION IS TO BE TAXED AS INCOM E FROM SHORT- TERM CAPITAL GAIN IN VIEW OF THE FACT THAT THE APPE LLANT WAS UNABLE TO ADDUCE ANY EVIDENCE TO SUBSTANTIATE THE DATE OF PUR CHASE OF SHARES AS BEING 02.04.2004. THUS IT IS CLEAR THAT IN THIS CASE THE APPELLANT HAS NEITHER FURNISHED ACCURATE PARTICULARS OF INCOM E IN HER RETURN NOR HAS FURNISHED ANY BONA-FIDE EXPLANATION NOR BEE N ABLE TO SUBSTANTIATE THE CLAIMS MADE IN RELATION TO THE SUM CLAIMED TO BE LONG-TERM CAPITAL GAINS. IT IS ALSO PERTINENT TO NOTE THAT THE MASKING OF THE RECEIPTS AS LONG TERM CAPITAL GAINS BY CLAIM ING A PERIOD OF HOLDING THAT WAS NOT SUBSTANTIATED, DIRECTLY IMPACT ED THE TAX LIABILITY OF THE APPELLANT. IN OTHER WORDS, THE APPELLANT SOU GHT UNDUE ADVANTAGE BY SEEKING TO DECLARE AS LONG TERM CAPIT AL GAINS WHAT WAS HELD BY THE ITAT TO BE SHORT-TERM CAPITAL GAIN S. THERE IS THEREFORE CLEAR INDICATION OF CONCEALMENT OF INCOME AND OF FURNISHING OF INACCURATE PARTICULARS. THAT BEING SO , I VIEW OF THE ENTIRE CONSPECTUS OF FACTS OF THE CASE THAT JUDICIA L PRONOUNCEMENTS DISCUSSED ABOVE, THE PENALTY OF RS.6,93,053/- U/S 2 71 (1) (C) IS UPHELD AND THE GROUND RAISED BY THE APPELLANT IS DI SMISSED. 6. AFTER CONJOINT READING OF THE ORDERS MENTIONED A BOVE AS WELL AS AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE LE ARNED CIT (A) HAS PRIMARILY HELD THAT THE ASSESSEE SOUGHT UNDUE ADVAN TAGE BY SEEKING TO DECLARE THE LONG TERM CAPITAL GAINS WHAT WAS HELD B Y THE TRIBUNAL TO BE SHORT TERM CAPITAL GAINS. IT WAS FURTHER HELD BY TH E LEARNED CIT (A) IN THE PENALTY APPEAL THAT THERE IS, THEREFORE, CLEAR INDI CATION OF CONCEALMENT OF INCOME AND/OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THAT BEING SO, IN VIEW OF THE ENTIRE CONSPECTUS OF THE FACTS O F THE CASE AND THE JUDICIAL PRONOUNCEMENTS DISCUSSED BY THE LEARNED CI T (A) THE PENALTY OF RS.6,93,053/- LEVIED U/S 271 (1) (C) OF THE ACT WAS UPHELD. 7. THE LEARNED CIT (A) WHILE UPHOLDING THE ORDER OF PENALTY HAS FURTHER CONCLUDED THAT IN THIS CASE THE ASSESSEE HAS NEITHE R FURNISHED ACCURATE PARTICULARS OF INCOME IN HER RETURN NOR HAS SHE FUR NISHED ANY BONA-FIDE ITA NO.5177/MUM/2014 6 EXPLANATION NOR SHE WAS ABLE TO SUBSTANTIATE HER CL AIM FOR LONG TERM CAPITAL GAINS. 7.1 HOWEVER, FROM PERUSAL OF THE ORDER OF THE TRIBU NAL PASSED IN QUANTUM APPEAL OF THE ASSESSEE IT IS CLEAR THAT THE CONCLUSION OF THE AO THAT THE AMOUNT OF RS.23,58,900/- AS INCOME FROM U NDISCLOSED SOURCES IS NOT UPHELD BY THE TRIBUNAL. THE TRIBUNAL HAS HEL D THAT THE SAID SHARES CAN ONLY BE TAKEN AS HAVING BEEN PURCHASED ON 31-03 -2005 AND HENCE, THE AMOUNT RECEIVED FROM THE TRANSACTION HAS TO BE TAXED AS SHORT TERM CAPITAL GAINS. IT IS, THEREFORE, IN THE BACKDROP O F THESE FACTS THAT LEVY OF PENALTY IN THE PRESENT CASE HAS TO BE CONSIDERED. 7.2 WE HAVE ALSO NOTED THAT ACCORDING TO SPECIFIC W ORDINGS CONTAINED IN SECTION 271 (1) (C) OF THE ACT AND CONSIDERING THE LAW LEXICON, THE WORD CONCEAL MEANS TO HIDE OR TO KEEP SECRET. THE WORD CONCEAL IS ROOTED IN LATINE WORD COCELARE WHICH IMPLIES TO HIDE OR WITHDRAW SOME OBSERVATIONS, TO COVER OR TO KEEP FROM SIGHT TO PRE VENT DISCOVERY OF WHOLE KNOWLEDGE OR CONCEALMENT OF THOSE FACTS OR PORTION THEREOF FROM THE KNOWLEDGE OF THE INCOME TAX AUTHORITIES. THEREFORE, AS PER THE DICTUM OF THE HONBLE APEX COURT RENDERED IN THE CASE OF DHAR MENDRA TEXTILES REPORTED IN 306 ITR 277 WHEREIN THE HONBLE APEX CO URT HAS NOT ONLY CLARIFIED THAT MENS REA WAS NOT REQUIRED TO BE PROV ED FOR LEVY OF PENALTY U/S 271 (1) (C) OF THE ACT BUT ALSO HELD THAT LEVY OF PENALTY IS NOT AUTOMATIC IF THE ASSESSEE CAN FURNISH A BONA-FIDE EXPLANATION . THIS WAS FURTHER CLARIFIED BY THE HONBLE APEX COURT IN THE DECISION RENDERED IN THE CASE OF ITA NO.5177/MUM/2014 7 CIT VS. ATUL MOHAN BINDAL [317 ITR 1 (SC)] WHEREIN THE HONBLE APEX COURT DISCUSSED THE JUDGMENT RENDERED IN THE CASE O F RAJASTHAN SPINNING AND WEAVING MILLS [254 CTR 1] AND HELD THAT FOR APP LICABILITY OF SECTION 271 (1) (C) OF THE ACT, THE CONDITIONS STATED THERE IN MUST EXIST. THESE CONDITIONS ARE THAT THE ASSESSEE SHOULD HAVE CONCEA LED THE PARTICULARS OR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME BEFORE THE PENALTY U/S 271 (1) (C) CAN BE LEVIED. FROM THE FAC TS BEFORE US, WE HAVE NOTED THAT THE ASSESSEE HAS MADE A CLAIM BEFORE THE AO ON DISCLOSED FACTS WHICH HAS NOT BEEN ACCEPTED BY THE AO. THUS, WHEN THERE IS FULL DISCLOSURE OF PARTICULARS OF INCOME BY THE ASSESSEE , IT CANNOT AMOUNT TO CONCEALMENT OF INCOME AND/OR FURNISHING OF INACCURA TE PARTICULARS OF INCOME AND THE ADDITION MADE ON ACCOUNT OF INCOME F ROM LONG TERM AND/OR SHORT TERM CAPITAL GAINS IS LEGAL IN NATUR E AND AS SUCH PENALTY IS NOT WARRANTED. EVEN OTHERWISE, AS PER EXPLANATION ( 1) TO SECTION 271 (1) (C) OF THE ACT CAST A DUTY ON THE AO TO FIRST RECOR D REASON THAT THERE HAS BEEN CONCEALMENT AND THEN SEEK EXPLANATION FROM THE ASSESSEE AND ONCE THE AO FINDS THE EXPLANATION OF THE ASSESSEE T O BE FALSE, THE AO CAN LEVY PENALTY ON THE AMOUNT WHICH IS FOUND TO BE CON CEALED. THUS, PENALTY ON CONCEALMENT CAN BE IMPOSED IF BOTH THE CONDITION S ARE FULFILLED NAMELY WHEN THE ASSESSEE HAS FAILED TO SUBSTANTIATE ITS EX PLANATION AND HAS ALSO FAILED TO PROVE ITS BONA-FIDE AND PENALTY CAN BE LE VIED WHEN THE CONDITIONS ARE PURELY OF LEGAL ISSUE. AS PER THE FACTS OF THE PRESENT CASE THERE CANNOT BE ANY DENIAL THAT ALONG WITH THE RETURN OF INCOME, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FURNISHED ALL THE RELEVANT DETAILS ITA NO.5177/MUM/2014 8 BEFORE THE AO AND THEREFORE, THE ASSESSEE CANNOT BE HELD TO HAVE FURNISHED INACCURATE PARTICULARS OF SUCH INCOME WIT HIN THE MEANING OF SECTION 271 (1) (C) SO AS TO CALL FOR ANY PENALTY. AFTER APPRECIATING THE ORDER PASSED BY THE TRIBUNAL IN QUANTUM APPEAL IN T HE ASSESSEES OWN CASE, THE TRIBUNAL HELD THAT INCOME FROM CAPITAL GA INS OF IFL TO BE ASSESSED AS INCOME ASSESSABLE AS INCOME FROM SHORT TERM CAPITAL GAINS AS AGAINST INCOME FROM LONG TERM CAPITAL GAINS DE CLARED BY THE ASSESSEE AND THEREBY NEGATING THE AOS VIEW. APART FROM THAT, THE ADDITION MADE ON ACCOUNT OF COMMISSION PAYMENT OF R S.1,17,945/- HAS ALSO BEEN DELETED BY THE TRIBUNAL IN THE SAID ORDER . 7.3 WE HAVE ALSO ANALYZED THE JUDGMENTS CITED BY TH E LEARNED AR IN THE CASED OF SHREE KRISHNA ELECTRICALS (2009) 23 VS T 249(SC) WHEREIN IT HAS BEEN HELD THAT PENALTY CANNOT BE LEVIED MERELY BECAUSE EXEMPTION CLAIMED BY A WAS DISALLOWED. WE HAVE ALSO GONE T HROUGH THE JUDGMENT CITED BY THE LEARNED AR IN THE CASE OF CIT VS RELIA NCE PETROPRODUCTS PVT. LTD. 322 ITR 158 (SC) WHEREIN IT WAS HELD THAT PA RTICULARS MEANS DETAILS OF THE CLAIM MADE WHERE INFORMATION GIVEN IS NOT FO UND OR FOUND TO BE INCORRECT, A CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS OF INCOME FOR THE PURPOSE OF LEVYING PENALTY U/S 271 ( 1) (C) AND FURTHER HELD THAT MERE MAKING A WRONG CLAIM DOES NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. IN THE ABSENCE OF FINDING T HAT ANY DETAILS SUPPLIED BY A IS INCORRECT OR FALSE, PENALTY CANNOT BE LEV IED. ITA NO.5177/MUM/2014 9 8. AFTER CONSIDERING THE FACTUAL AS WELL AS LEGAL P OSITION AS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE LEARN ED CIT (A) HAS CONFIRMED THE PENALTY LEVIED BY THE AO ON THE BASIS THAT THE ASSESSEE SOUGHT UNDUE ADVANTAGE BY SEEKING TO DECLARE INCOME EARNED FROM SHARES AS LONG TERM CAPITAL GAINS WHEN IN THE QUANT UM APPEAL THE TRIBUNAL TREATED THE SAME AS SHORT TERM CAPITAL GAI NS. IN OUR CONSIDERED VIEW, MERE MAKING A CLAIM UNDER WRONG HEAD DOES NOT AUTOMATICALLY CONSTITUTE THAT ANY DETAILS SUPPLIED BY THE ASSESSE E BEFORE THE ASSESSING OFFICER ARE NOT ACCURATE AND PENALTY CAN BE LEVIED. OUR THIS VIEW IS FORTIFIED BY THE JUDGMENT OF THE HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS PVT. LTD. 323 ITR 158. ACCORDINGLY, WE REVERSE THE FINDINGS OF THE LEARNED CIT (A). CONSEQ UENTLY, THE PENALTY LEVIED ON THE ASSESSEE IS DELETED. RESULTANTLY, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 10/8/201 6. SD/- SD/- ( JASON P. BOAZ ) ( SANDEEP GOSAI N ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI , DATED 10/8/2016 LAKSHMIKANTA DEKA/SR.PS LAKSHMIKANTA DEKA/SR.PS LAKSHMIKANTA DEKA/SR.PS LAKSHMIKANTA DEKA/SR.PS ITA NO.5177/MUM/2014 10 COPY OF THE ORDER FORWARDED TO : BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//