RENUKA AJAY MAROO, Jaipur V. ITO, Jaipur

ITA 660/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5394 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 21-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH CIT DHK
• Keywords: Business income; Depreciation
• Section: 27; 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K YFYR DQEKJ] U;KF;D LNL; BEFORE: SHRI VIKRAM SINGH YADAV, AM & AND SHRI LA LIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO.660/JP/15 U/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SMT. RENUKA AJAY MAROO, B-105, SAHYOG APARTMENT, VIDHYADHAR NAGAR, JAIPUR CUKE VS. THE ITO, WARD 4(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAJPN 6941 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01.04.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 26/04/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-2, JAIPUR DATED 15.06.2015 WHEREIN THE ASSESSEE HAS TA KEN FOLLOWING GROUND OF APPEAL: THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CO NFIRMING THE LEVY OF PENALTY U/S 271(1)(C) ON AN AMOUNT OF RS. 27,57,864 /- WHICH WAS DECLARED BY THE ASSESSEE AS LONG TERM CAPITAL GAIN IN THE RETURN OF INCOME BUT ASSESSED AS SHORT TERM CAPITAL GAIN OF R S. 26,08,582/- BUSINESS INCOME OF RS. 1,48,744/- AND SPECULATION P ROFIT OF RS. 538/-. ITA NO. 660/JP/15 SMT. RENUKA AJAY MAROO VS. ITO WARD 4(2), JAIPUR 2 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE HAS DISCLOSED LONG TERM CAPITAL GAIN OF RS. 78,12,724/- AND HAS CLAIME D THE SAME AS EXEMPT U/S 10(38) OF THE ACT WHICH WAS NOT ACCEPTABLE TO THE A O AND HE HAS TREATED THE SAME AS BUSINESS INCOME IN THE HANDS OF THE APPEL LANT. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO CONF IRMED THE TREATMENT DONE BY THE ASSESSEE WHEREBY INCOME FROM THE SALE OF SHA RES WERE HELD TAXABLE UNDER THE HEAD CAPITAL GAINS. HOWEVER, REGARDING PERIOD OF HOLDING OF THE SHARES, THE LD. CIT(A) HAS GIVEN A FINDING THAT TH E APPELLANT HAS FILED A STATEMENT BEFORE HIM ACCORDING TO WHICH THE LONG TE RM CAPITAL GAINS OF RS. 78,12,724/- CLAIMED BY THE APPELLANT IN HER RETURN OF INCOME WAS NOT CORRECT AND AS PER THE SAID STATEMENT, THE CORRECT LONG TE RM CAPITAL GAIN AMOUNTS TO RS. 50,54,860/- ONLY AND THEREFORE, THE REMAINING A MOUNT WAS TO BE HELD AS SHORT TERM CAPITAL GAIN. THE AO IS ACCORDINGLY DIR ECTED TO ASSESS THE LONG TERM CAPITAL GAIN AT RS. 50,54,860/- AND THE BALANCE AMO UNT OF RS.27,57,864/- AS SHORT TERM CAPITAL GAIN. 2.1 THE REVENUE CARRIED THE MATTER IN FURTHER APPE AL BEFORE THE CO-ORDINATE BENCH WHICH VIDE ITS ORDER DATED 22.11. 2011 LAID DOWN THE GUIDELINES FOR DETERMINING THE INCOME FROM SALE OF SHARES AS LONG TERM CAPITAL GAINS/SHORT TERM CAPITAL GAIN/ BUSINESS PROFITS/ SP ECULATIVE PROFITS ON THE BASIS OF PERIOD OF HOLDING OF THE SHARES. BASED ON THE GUIDELINES LAID DOWN BY THE CO-ORDINATE BENCH, THE AO RECOMPUTED THE INCOM E FROM SALE OF SHARES AS UNDER:- LONG TERM CAPITAL GAIN 50,54,860/- SHORT TERM CAPITAL GAIN 26,08,582/- BUSINESS PROFIT 1,48,744/- SPECULATION PROFIT 538/- TOTAL 78,12,724/- THEREAFTER THE AO LEVIED A PENALTY OF RS.3,41,078/- @ 100% OF TAX SOUGHT TO BE EVADED ON LONG TERM CAPITAL GAINS AMOUNTING TO RS.2 7,57,864/- WHICH WERE FINALLY ASSESSED AS SHORT TERM CAPITAL GAINS, BUSIN ESS PROFITS AND SPECULATIVE PROFITS. ITA NO. 660/JP/15 SMT. RENUKA AJAY MAROO VS. ITO WARD 4(2), JAIPUR 3 2.2 THE APPELLANT CARRIED THE MATTER IN APPEAL BEFO RE THE LD. CIT(A) WHO HAS CONFIRMED THE LEVY OF PENALTY AND HAS GIVEN HIS FIN DINGS WHICH ARE REPRODUCED AS UNDER: IN THIS CASE, THE ASSESSEE HAS BEEN DEALING IN SHA RES AND HAS SHOWN THE ENTIRE GAINS AS LONG TERM CAPITAL GAINS IN THE RETURN OF I NCOME. UPON SCRUTINY AND CONSEQUENT APPEAL, IT WAS FOUND THAT THE PERIOD OF HOLDING OF SHARES FOR SHORT TERM CAPITAL GAINS OF RS.26,08,582/-, BUSINESS PROF ITS OF RS. 1,48,744/- AND SPECULATION PROFIT OF RS. 538/- WAS LESS THAN ONE Y EAR. IN THE RETURN OF INCOME, IT HAD BEEN CLAIMED THAT THE PERIOD OF HOLDING OF S HARES WAS GREATER THAN ONE YEAR, IN ALL CASES. IT IS THE CLAIM OF THE APPELLA NT THAT ALL THE RECORDS PERTAINING TO HOLDING OF SHARES HAD BEEN DESTROYED DUE TO RAIN IN SUPPORT OF WHICH AN AFFIDAVIT HAS ALSO BEEN FILED. THE ISSUE WHICH HAS TO BE DECIDED HERE IS WHETHER ALL FACTS MATERIAL TO THE COMPUTATION OF INCOME FRO M TRANSACTIONS IN SHARES HAVE BEEN DISCLOSED IN THE RETURN OF INCOME FILED. THE ANSWER TO THIS QUESTION IS OBVIOUSLY NO, NOTWITHSTANDING THE FACT THAT THE ASS ESSEE MAY NOT HAVE HAD THE NECESSARY PRIMARY RECORDS IN THIS REGARD. THE ASSE SSEE HAS SUFFICIENT TIME AFTER DESTRUCTION OF RECORDS IN JUNE, 2005 TO OBTAIN COPI ES OF THE SAME FROM BROKERS, SUB-BROKERS, DEPOSITORY PARTICIPANTS ETC. YET THE ASSESSEE CHOSE NOT DO SO, BEFORE FILING THE RETURN OF INCOME AND FILED INCOR RECT PARTICULARS OF INCOME , IN THE RETURN OF INCOME, KNOWING FULLY WELL THAT HE DI D NOT HAVE ANY RECORDS TO SUPPORT HIS CLAIM AND THAT THE HOLDING PERIOD OF SE VERAL SHARES WAS LESS THAT 1 YEAR AND IN SOME CASES, EVEN LESS THAN 1 MONTH. HE DISCLOSED ALL SUCH GAINS AS LONG TERM CAPITAL GAINS WHICH IS EXEMPT FROM TAX, T HEREBY TAKING A STAND MOST FAVOURABLE TO HIM, WITHOUT ANY BASIS. THE CASE L AWS CITED BY THE APPELLANT PERTAIN TO THOSE CASES WHERE ALL FACTS MATERIAL TO THE COMPUTATION OF INCOME HAVE BEEN DISCLOSED IN THE RETURN OF INCOME BUT DUE TO INADVERTENT MISTAKE, THE INCOME HAS NOT BEEN CORRECTLY COMPUTED. THIS IS NOT THE CASE HERE BECAUSE ALL FACTS MATERIAL TO THE COMPUTATION OF INCOME FRO M TRANSACTIONS IN SHARES HAVE NOT BEEN DISCLOSED IN THE RETURN OF INCOME. T HEREFORE, THIS IS A FIT CASE OF LEVY OF PENALTY U/S 271(1)(C) FOR FURNISHING INACCU RATE PARTICULARS OF INCOME. HENCE, PENALTY U/S 271(1)(C) IS UPHELD ON THE ISSUE AT SERIAL NO.(I) ABOVE. 2.3 THE LD. AR SUBMITTED THAT THE AO HAS INITIATED THE PENALTY PROCEEDINGS BY RECORDING A SATISFACTION THAT ASSESSEE CONCEALED TRUE INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME BY DECLARING HER B USINESS INCOME AS LTCG. ITA NO. 660/JP/15 SMT. RENUKA AJAY MAROO VS. ITO WARD 4(2), JAIPUR 4 AFTER THE ORDER OF CIT(A) IN QUANTUM PROCEEDINGS, I T WAS HELD THAT INCOME DECLARED BY THE ASSESSEE IS TO BE ASSESSED UNDER TH E HEAD CAPITAL GAIN AND NOT UNDER THE HEAD BUSINESS INCOME. THUS, THE VERY SAT ISFACTION OF THE AO TO INITIATE PROCEEDINGS U/S 271(1)(C) THAT INCOME OF T HE ASSESSEE SHOULD BE ASSESSED AS BUSINESS INCOME DID NOT SURVIVE AFTER THE ORDER OF CIT(A). THEREFORE, ONLY BECAUSE AFTER THE ORDER OF ITAT, A PART OF SUCH INCOME OF RS.1,48,744/- + 538/-IS ASSESSED AS BUSINESS INCOME /SPECULATIVE INCOME AND RS. 26,08,582/- IS ASSESSED AS STCG ACCORDING TO TH E PRINCIPAL LAID BY THE HONBLE ITAT, IT CANNOT BE SAID THAT ASSESSEE FURN ISHED INACCURATE PARTICULARS OF INCOME. IT MAY BE SUBMITTED THAT BEFORE THE LOW ER AUTHORITIES, ASSESSEE FILED THE NECESSARY DETAILS. ON THE BASIS OF THESE DETAILS ONLY, THE INCOME FROM LTCG DECLARED BY THE ASSESSEE WAS PARTLY ASSESSED A S STCG/BUSINESS INCOME. THUS IT CANNOT BE HELD THAT THE ASSESSEE HAS FURNIS HED INACCURATE PARTICULARS OF INCOME. THE INCOME AS DECLARED BY THE ASSESSEE REMA INED THE SAME. ONLY THERE IS A CHANGE IN THE HEAD OF INCOME. THEREFORE , ON SUCH CHANGE IN THE HEAD OF INCOME, NO PENALTY U/S 271(1)(C) IS ATTRACT ED AS HELD IN THE FOLLOWING CASES: ANOOPGARH KRAYA VIKRAYA SAHAKARI SAMITI LTD. VS. A CIT (2015) 374 ITR 558 (RAJ.)(HC) ASSESSEE DISCLOSING THAT IT HAD SOLD DAL MILL FOR CONSIDERATION STATED ON WHICH IT HAS BEEN CLAIMING DEPRECIATION AND ALSO DISCLOS ING WRITTEN DOWN VALUE ON THE DATE OF SALE, MERELY BECAUSE IT TREATED THE SA LE CONSIDERATION AS LONG TERM CAPITAL GAIN WOULD NOT ATTRACT PENALTY U/S 271(1)(C ). ENTIRE FACTS WERE TRULY DISCLOSED BY ASSESSEE AND IT WAS FOR THE AO NOT TO ACCEPT THE TREATMENT GIVEN BY ASSESSEE TO SALE CONSIDERATION AND BRING THE SAM E TO TAX AS SHORT TERM CAPITAL GAIN. CIT VS. ANANT OVERSEAS PVT. LTD. (2015) 229 TAXMAN 433 (DEL.) (HC) WHEN ALL PARTICULARS RELATING TO CAPITAL GAINS WERE DULY DISCLOSED IN RETURN AS WELL AS IN BALANCE SHEET WHICH INDICATED THAT ASSES SEE WAS MAINTAINING A CLEAR DEMARCATION BETWEEN SHARES TREATED AS INVESTMENTS A ND SHARES HELD AS STOCK- IN-TRADE FOR BUSINESS, LEVY OF PENALTY U/S 271(1)(C ) ON ASSESSEE MERELY BECAUSE AO TREATED CAPITAL GAIN DECLARED BY THE ASSESSEE AS ITS BUSINESS INCOME WAS UNJUSTIFIED. ITA NO. 660/JP/15 SMT. RENUKA AJAY MAROO VS. ITO WARD 4(2), JAIPUR 5 CIT VS. AMIT JAIN (2013) 352 ITR 0074 (DEL.) (HC) ASSESSEE RETURNED CERTAIN INCOME AS SHORT TERM CAPI TAL GAINS. AO HAVING REGARD TO THE NATURE OF TRANSACTIONS, ASSESSED THE SAME AS INCOME FROM BUSINESS AND ALSO LEVIED PENALTY U/S 271(1)(C) ON T HE GROUND THAT ASSESSEE HAS PRODUCED INACCURATE PARTICULARS. IT WAS HELD THAT INCOME IN QUESTION, WHICH FORMED THE BASIS FOR AO TO LEVY PENALTY WAS IN FACT TRUTHFULLY REPORTED IN THE RETURNS. ASSESSEE HAVING RETURNED INCOME AS STCG, F ACT THAT AO ASSESSED THE SAME AS BUSINESS INCOME WOULD NOT AMOUNT TO CONCEAL MENT OR FURNISHING INACCURATE PARTICULARS OF INCOME SO AS TO ATTRACT P ENALTY U/S 271(1)(C). CIT VS. KRISHNAN THYAGARAJAN SIVARANA (2008) 172 TA XMAN 0334 (DEL.)(HC) IN THIS CASE, INITIALLY THE AO ACCEPTED THE RETURN SUBMITTED BY THE ASSESSEE BUT THE CIT(A) EXERCISED POWERS U/S 263 OF THE ACT AND DIRECTED THE AO TO TAX THE PROCEEDS OF SALE OF SHARES AS A SHORT-TERM CAPITAL GAIN AS AGAINST THE LONG TERM CAPITAL GAIN CLAIMED BY THE ASSESSEE. THE AO MORE THAN FOLLOWED THE DIRECTION GIVEN BY THE CIT(A) AND NOT ONLY TAXED THE ASSESSEE ON SHORT TERM CAPITAL GAINS BUT ALSO IMPOSED A PENALTY FOR FURNISHING INACCURAT E PARTICULARS OF INCOME WHICH HAD LED TO AN INACCURATE COMPUTATION OF TAX. IT WAS HELD THAT THE ASSESSEE HAD MADE A FULL DISCLOSURE OF ALL THE FACT S AS REQUIRED BY THE REVENUE AND THERE WAS NO QUESTION OF ANY INACCURATE PARTICU LARS HAVING BEEN FURNISHED BY THE ASSESSEE WITH A VIEW TO GAINING ANY ADVANTAG E. THUS THERE WAS NO CASE OF PENALTY U/S 271(1)(C). BSEL INFRASTRUCTURE REALITY LTD. VS. ACIT (2012) 137 ITD 61 (MUM.)(TRIB.) ASSESSEE CLAIMED STCG ON SALE OF SHARES. HOWEVER, AO REJECTED THE SAID CLAIM AND TREATED GAIN AS SPECULATIVE BUSINESS INCOME U/S 73 AND INITIATED PENALTY PROCEEDINGS. IN PENALTY PROCEEDINGS, ASSESSEE SUBM ITTED THAT IT WAS NOT ENGAGED IN SHARE TRADING BUSINESS AND THAT IT PURCH ASED THOSE SHARES FOR INVESTMENT PURPOSES AND, IT WAS UNDER A BONA FIDE B ELIEF THAT INCOME FROM SALE OF SHARES WAS TAXABLE AS CAPITAL GAINS. AO REJ ECTED SAID EXPLANATION ON THE GROUND THAT IN QUANTUM PROCEEDINGS ASSESSEE HAD FA ILED TO SUBSTANTIATE ITS CLAIM UNDER THE HEAD CAPITAL GAINS INSTEAD OF SPE CULATION INCOME. IT WAS HELD ITA NO. 660/JP/15 SMT. RENUKA AJAY MAROO VS. ITO WARD 4(2), JAIPUR 6 THAT ASSESSMENT ORDER IS NOT A FINAL WORD IN PENALT Y PROCEEDINGS. FRESH PLEAS CAN BE TAKEN AT PENALTY STAGE AND HOWSOEVER GOOD FI NDINGS MAY BE IN ASSESSMENT PROCEEDINGS, THEY ARE NOT CONCLUSIVE SO FAR AS PENALTY PROCEEDINGS ARE CONCERNED; MATTER HAS TO EXAMINED AFRESH AND AO CANNOT BE GUIDED WITH FINDING GIVEN ON QUANTUM SIDE. SINCE ASSESSEE WAS C ARRYING OUT BUSINESS OF INFRASTRUCTURE DEVELOPMENT AND SALE AND PURCHASE O F SHARES WAS ONLY ANCILLARY ASSESSEE COULD NOT BE HELD TO BE GUILTY OF FURNISHI NG INACCURATE PARTICULARS OF INCOME. 2.4 LD DR IS HEARD WHO HAS ARGUED THE MATTER AT LEN GTH AND SUBMITTED THAT LD CIT(A) WAS CORRECT IN CONFIRMING THE LEVY OF PEN ALTY AS THE APPELLANT HAS FAILED TO FURNISH ACCURATE PARTICULARS OF HER INCOM E. 2.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED MATERIAL AVAILABLE ON RECORD. AN AMOUNT OF RS 78,12,724/- HAS BEEN ASSESSED TO TAX BASED ON THE GUIDELINES LAID DOWN BY THE CO-ORDINATE BENCH AND T HE COMPARATIVE POSITION IS AS UNDER: PARTICULARS OF INCOME INCOME AS ORIGINALLY DECLARED IN THE RETURN OF INCOME INCOME AS PER REVISED STATEMENT SUBMITTED BY THE APPELLANT FINALLY ASSESSED INCOME LONG TERM CAPITAL GAIN 78,12,724/- (CLAIMED AS EXEMPT U/S 10(38) 50,54,860/- LTCG 27,57,864/- STCG 50,54,860 LTCG 26,08,582/- STCG 1,48,744 BUSINESS INCOME 538/- SPECULATION PROFIT IN THIS REGARD, THE APPELLANT HAS SUBMITTED THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS, DUE TO NON AVAILABILITY OF THE COMPLET E RECORDS, AS TO THE DATE OF ACQUISITION OF THE SHARES SOLD (AS THE RECORDS WERE DESTROYED IN THE FLOOD AT MUMBAI DATED 26.07.2005), THE ASSESSEE OBTAINED THE DETAILS FROM THE CONCERNED DEPOSITORY, IN RESPECT OF THE TRANSACTION S MADE BY HER IN THE EARLIER YEARS AND ON THAT BASIS, PREPARED THE STATEMENT OF THE LONG TERM CAPITAL GAIN. IN THAT STATEMENT, THE DATES OF ACQUISITION WERE TA KEN ON THE BASIS OF MEMORANDUM RECORDS. NOW, ON FURTHER VERIFICATION OF THE SAME, WITH REFERENCE TO THE STATEMENT GIVEN BY THE DEPOSITORY, IT HAS BEEN NOTED THAT THE DATES OF THE ACQUISITION OF THE SHARES WERE NOT TAK EN CORRECTLY AND, THEREFORE, LONG TERM CAPITAL GAIN DECLARED BY THE ASSESSEE WA S NOT CORRECT. AS PER THE CORRECT STATEMENT, NOW PREPARED THE LONG TERM CAPIT AL GAIN OF RS. 78,12,724/- ITA NO. 660/JP/15 SMT. RENUKA AJAY MAROO VS. ITO WARD 4(2), JAIPUR 7 DECLARED IN THE RETURN, AND THE SHORT TERM CAPITAL GAIN WORKS OUT TO RS. 27,37,685/-, OVER AND ABOVE THE SHORT TERM CAPITAL GAIN OF RS.9,06,235/- DECLARED IN THE RETURN OF INCOME BY THE ASSESSEE. FURTHER, AS AGAINST 27,57,864/- OF STCG OFFERED AS PER THE REVISED STAT EMENT SUBMITTED BY THE APPELLANT, AMOUNT OF RS 26,08,582/- AS STCG, AMOUNT OF RS 1,48,744 AS BUSINESS INCOME AND AMOUNT OF RS 538/ AS SPECULATIO N PROFIT HAS BEEN FINALLY ASSESSED TO TAX. IT IS THUS NOT IN DISPUTE THAT TH ERE IS COMPLETE DISCLOSURE AS FAR AS QUANTUM OF INCOME WHICH IS SUBJECT TO TAX. ONLY DISPUTE RELATES TO NATURE OF INCOME AND WHETHER THE APPELLANT HAS BEEN CORRECT I N DETERMINING THE CORRECT NATURE OF INCOME. AS PER THE APPELLANT, IT WAS INI TIALLY OF THE BELIEF THAT ENTIRE INCOME WAS IN NATURE OF LONG TERM CAPITAL GAINS AND THE SAME WAS CLAIMED AS EXEMPT UNDER SECTION 10(38) BASED ON AVAILABILITY O F LIMITED RECORDS AND THE FACT THAT ITS RECORDS WERE DESTROYED BY FIRE. LATE R ON, FURTHER VERIFICATION OF THE SAME, WITH REFERENCE TO THE STATEMENT GIVEN BY THE DEPOSITORY, IT WAS REALISED BY THE APPELLANT THAT THE DATES OF ACQUISITION OF S HARES WERE NOT TAKEN CORRECTLY IN SOME CASES AND A REVISED STATEMENT WAS FILED BIFURCATING LONG TERM CAPITAL GAINS INTO LONG TERM AND SHORT TERM CAPITAL GAINS. THE EXPLANATION THUS OFFERED BY THE APPELLANT IS A BONAFIDE EXPLANATION WHERE THE APPELLANT HAS EXPLAINED HER PRACTICAL DIFFICULTIES IN DETERMINING THE CORRECT PERIOD OF HOLDING OF SHARES AND HER OWN ADMISSION SUBSEQUENTLY DURING THE COURSE OF APPELLATE PROCEEDINGS WHERE THE CORRECT PERIOD OF HOLDING WAS DETERMINED AND UPHELD BY THE LD CIT(A). FURTHER, IT IS NOTED THAT THE CO ORDINATE BENCH HAS LAID DOWN CERTAIN PRINCIPLES AND GUIDELINES FOR DETERMINING T HE NATURE OF INCOME BASED ON PERIOD OF HOLDING WHEREBY LTCG AND STCG OFFERED BY THE APPELLANT AS PER REVISED STATEMENT HAS BEEN ACCEPTED EXCEPT FOR AN A MOUNT OF RS 1,48,744 AND RS 538 WHICH HAS BEEN FINALLY ASSESSED AS BUSINESS PROFITS AND SPECULATIVE PROFITS RESPECTIVELY. WHERE ALL FACTS ARE ON RECORD, THE DETERMINATION OF NATURE OF INCOME AS BUSINESS INCOME AND SPECULATIVE INCOME INSTEAD OF CAPITAL GAINS BASED ON GUIDELINES LAID DOWN BY THE TRIBUNAL CANNO T FORM THE BASIS FOR LEVY OF PENALTY AS HAS BEEN LAID DOWN BY VARIOUS COURTS AS QUOTED SUPRA. IN LIGHT OF ABOVE, LEVY OF PENALTY UNDER SECTION 27 1(1)(C) IS NOT JUSTIFIED AND IS HEREBY DELETED. IN THE RESULT THE APPEAL FILED BY THE APPELLANT IS ALLOWED. ITA NO. 660/JP/15 SMT. RENUKA AJAY MAROO VS. ITO WARD 4(2), JAIPUR 8 ORDER PRONOUNCED IN THE OPEN COURT ON 26 / 04/2016. SD/- SD/- ( LALIET KUMAR ) ( VIKRAM SINGH YADAV ) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 26 / 04 /2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. RENUKA AJAY MAROO, JAIPUR 2. THE RESPONDENT- THE ITO, WARD 4(2), JAIPUR 3. THE CIT(A) II, JAIPUR 4. THE CIT-II, JAIPUR 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO.660 /JP/15) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR