Sh. Rajnish Thakur, Ludhiana V. ACIT, Ludhiana

ITA 697/CHANDI/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9872 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 14-06-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 29-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Business income; Question of law; Wrong claim; Accommodation entries
• Section: 143(3); 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 697/CHD/2015 ASSESSMENT YEAR: 2003-04 SHRI RAJNISH THAKUR , VS THE ACIT, SCO 545, COLLEGE ROAD, CIRCLE V, LUDHIANA. LUDHIANA. PAN: AAJPT3443L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 14.06.2016 DATE OF PRONOUNCEMENT : 17.06.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-2 LUDHIANA DATED 02.03.2015 FOR ASSESSMENT YEAR 2003-04 CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSMEN T IN THIS CASE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 30.03.2006 AT AN INCOME OF RS. 15,32,190/- AGAINST RETURNED INCOME OF RS. 14,83,440/-. PENALTY PROCEEDINGS WERE INITIATE D UNDER SECTION 271(1)(C) OF THE ACT OF THE ACT FOR CONCEALMENT OF INCOME. AGGRIEVED AGAINST THE ORDER OF 2 ASSESSMENT, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(APPEALS)-2 LUDHIANA WHO VIDE ORDER DATED 31.03.2010 UPHELD THE ADDITION OF RS. 11,25,000/- MADE BY ASSESSING OFFICER ON THE ISSUE OF TREATING CAPITAL GAIN ON PURCHASE AND SALE OF SHARES AS UNDISCLOSED INCOME FROM OTHER SOURCES. THE ASSESSI NG OFFICER ISSUED PENALTY NOTICE UNDER SECTION 271(1)( C) OF THE ACT. THE ASSESSEE SUBMITTED A REPLY BEFORE ASSESSING OFFICER THAT THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. DURING THE YEAR, ASSESSEE WAS HAVING INCOM E UNDER THE HEAD LONG TERM CAPITAL GAINS ON SALE OF SHARES APART FROM REGULAR BUSINESS INCOME. THE ASSESSEE HAD PAID INCOME TAX @ 10% ON THE INCOME ON LONG TERM CAPITAL GAINS. FURTHER, DURING THE COURS E OF ASSESSMENT PROCEEDINGS, ALL RELEVANT DETAILS WERE F ILED BEFORE ASSESSING OFFICER BUT THE ASSESSING OFFICER TREATED THE LONG TERM CAPITAL GAIN AS INCOME FROM O THER SOURCES. THE ASSESSING OFFICER DID NOT ACCEPT CONTENTION OF THE ASSESSEE AND OBSERVED THAT ASSESS EE MADE WRONG CLAIM OF LONG TERM CAPITAL GAIN IN VIEW OF THE FACTS DISCUSSED IN THE ASSESSMENT ORDER AND AS A RESULT OF ENQUIRIES MADE FROM VARIOUS STOCK EXCHANG ES, REGISTRAR OF COMPANIES AND VARIOUS BANKS, THROUGH WHICH CHEQUES HAVE BEEN CLEARED. THE ASSESSING OFFICER OBSERVED THAT ASSESSEE FAILED TO PRODUCE EVIDENCE TO SUBSTANTIATE THE PURCHASE OF SHARES FRO M DIFFERENT COMPANIES AND ALSO THE SHARE BROKERS FAIL ED 3 TO PRODUCE BOOKS OF ACCOUNT AND ORIGINAL VOUCHERS A ND SUPPORTING DOCUMENTS OF PURCHASE/SALE OF SHARES SOL D AT THE ABOVE RATES. 3. THE ASSESSEE ALSO FAILED TO PRODUCE SHARE BROKER S IN SUPPORT OF THE PURCHASE AND SALE OF SHARES. THE ENQUIRIES FROM STOCK EXCHANGES OF LUDHIANA, NEW DELHI, MUMBAI AND KOLKATA REVEALED THAT SHARES TRAD ED WERE NOT LISTED WITH THE STOCK EXCHANGE OF MUMBAI A ND KOLKATA. THE SHARES WERE LISTED WITH NEW DELHI STO CK EXCHANGE BUT THESE WERE LAST TRADED ON 26.11.1996 @ RS. 10.75 PER SHARE. THE SHARES WERE LISTED WITH LUDHIANA STOCK EXCHANGE LTD., BUT THERE WAS NO TRADING DURING THE PERIOD FROM 01.04.2001 TO 31.03.2003. THEREFORE, SHARES IN QUESTION WERE NOT TRADED THROUGH ANY STOCK EXCHANGE. THE ASSESSEE AL SO FAILED TO GIVE EVIDENCE OF WHETHER THESE SHARES WER E TRADED ON ANY OTHER RECOGNIZED STOCK EXCHANGE. THE BROKERS HAVE ALSO NOT PRODUCED THEIR BOOKS OF ACCOU NT. THE ASSESSING OFFICER NOTED THAT ADDITION HAS BEEN CONFIRMED BY LD. CIT(APPEALS) ON MERIT. EVEN DURIN G THE COURSE OF PENALTY PROCEEDINGS, ASSESSEE COULD N OT FURNISH ANY EVIDENCE OF TRADING THE SALE OF SHARES AS CAPITAL GAINS. THE ASSESSING OFFICER FURTHER NOTED THAT ONLY FEW NUMBER OF CASES ARE TAKEN UP FOR SCRUTINY ASSESSMENT AND ASSESSEE HAS FURNISHED WRONG PARTICULARS IN THE RETURN OF INCOME BY TAKING CHANC E, THEREFORE, ASSESSEE IS LIABLE FOR PENALTY. THE ASS ESSING 4 OFFICER, IN VIEW OF THE ABOVE HELD THAT ASSESSEE HA S FURNISHED INACCURATE PARTICULARS OF INCOME OF RS. 11,25,000/- THEREBY CANCELING HIS TRUE INCOME AND ACCORDINGLY VIDE SEPARATE ORDER, LEVIED THE PENALTY AGAINST THE ASSESSEE. 4. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE LD. CIT(APPEALS) AND DETAILED SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED IN THE IMPUGNED ORDER IN WHICH THE ASSESSEE REITERATED THE SAME FACTS SUBMIT TED BEFORE ASSESSING OFFICER AND ALSO SUBMITTED THAT ASSESSEE HAD ALREADY DECLARED CAPITAL GAINS IN THE RETURN OF INCOME AND PAID TAX @ 10%. THE TRANSACTI ONS HAVE BEEN DISCLOSED IN THE RETURN OF INCOME AS WELL AS AT THE ASSESSMENT STAGE. FULL FACTS HAVE BEEN DISCLOSED AND ALL TRANSACTIONS ARE CARRIED THROUGH ACCOUNT PAYEE CHEQUES, THEREFORE, THERE IS NO CONCEALMENT OF INCOME. ALL THE SALE AND PURCHASE O F SHARES HAVE BEEN ROUTED THROUGH D-MAT ACCOUNT. RELEVANT MATERIAL HAVE NOT BEEN CONFRONTED TO THE ASSESSEE. THE ASSESSEE PURCHASED SHARES OF M/S COUNTRY CREDIT CAP LTD. IN PRECEDING ASSESSMENT YEA R 2002-03 AND DETAILS ARE MENTIONED IN THE ASSESSMENT ORDER. THE SALE OF SHARES WAS MADE THROUGH VARIOUS REGISTERED STOCK EXCHANGE BROKERS AND PAYMENTS HAVE BEEN RECEIVED BY ACCOUNT PAYEE CHEQUES. COPIES OF T HE ACCOUNTS OF THE BROKERS ALONGWITH COPIES OF THE BIL LS, THEIR PAN NUMBER ETC. HAVE BEEN FILED. THE ASSESSE E 5 HAD BEEN MAINTAINING D-MAT ACCOUNT FROM WHERE THERE IS DOCUMENTARY EVIDENCE IN RESPECT OF SUCH PURCHASE AND SALE OF SHARES. COPY OF THE D-MAT ACCOUNT AND DETAILS THEREOF ARE REPRODUCED IN THE ASSESSMENT OR DER. THE ASSESSING OFFICER MADE ENQUIRIES FROM LUDHIANA STOCK EXCHANGE AND MAINTENANCE OF D-MAT ACCOUNT BY ASSESSEE WHICH HAVE BEEN DULY CONFIRMED. EXISTENCE OF THE SHARE BROKERS HAVE BEEN CONFIRMED IN THEIR REPL IES. IF THE BROKERS FAILED TO PRODUCE BOOKS OF ACCOUNT, NO FAULT CAN BE ATTRIBUTED TO THE ASSESSEE. SHARES OF THE COMPANIES ARE LISTED AT AHMEDABAD STOCK EXCHANGE AND MADHYA PRADESH STOCK EXCHANGE AND THE COMPANIES ARE REGISTERED WITH REGISTRAR OF COMPANIE S. THEREFORE, IT IS NOT A CASE OF CONCEALMENT OF INCOM E OR FURNISHING INACCURATE PARTICULARS OF INCOME. 5. THE LD. CIT(APPEALS) DID NOT ACCEPT CONTENTION O F THE ASSESSEE AND NOTED THAT ASSESSEE HAS RECEIVED ACCOMMODATION ENTRIES CLAIMING THE INCOME AS LONG TERM CAPITAL GAIN. THE ASSESSEE FURNISHED WRONG PARTICULARS IN THE RETURN OF INCOME. THE ENQUIRIES CONDUCTED THROUGH STOCK EXCHANGE CLEARLY REVEALED THAT THESE SHARES WERE NOT PURCHASED OR SOLD THROUG H STOCK EXCHANGE, THEREFORE, IT IS A FIT CASE OF FURN ISHING INACCURATE PARTICULARS OF INCOME AND ACCORDINGLY, PENALTY ORDER WAS CONFIRMED AND APPEAL OF THE ASSES SEE HAS BEEN DISMISSED. 6 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS REFERRED TO PB-1 WHICH IS STATEMENT OF TOTAL INCOME IN WHICH ASSESSEE DISCLOSED SALE CONSIDERATION OF SHAR ES OF RS. 11,25,000/- AND PAID TAXES THEREON WHICH FAC T WAS ALSO DISCLOSED IN THE RETURN OF INCOME. PB-3 & 4 ARE COPIES OF THE PURCHASE BILLS/CONTRACT NOTE. PB- 5 TO 9 ARE COPIES OF THE SALE BILLS/CONTRACT NOTES. PB- 10 TO 13 IS CERTIFIED COPY OF ACCOUNT OF THE ASSESSEE IN THE BOOKS OF THE BROKERS. PB-14 AND 15 ARE COPY OF D-M AT ACCOUNT ALONGWITH CERTIFICATE OF SHARES TRANSFER. PB-16 TO 18 ARE EVIDENCE OF LISTED SHARES ALONGWITH RATE IN THE STOCK EXCHANGE OF AHMEDABAD. THE LD. COUNSEL FOR T HE ASSESSEE, THEREFORE, SUBMITTED THAT ASSESSEE DISCLO SED ALL THE PARTICULARS OF SALE OF SHARES IN THE COMPUT ATION OF INCOME AND IN THE RETURN OF INCOME. THE TRANSACTIONS ARE CARRIED THROUGH BANKING CHANNEL AN D THROUGH D-MAT ACCOUNT, ONLY HEAD OF INCOME HAS BEEN CHANGED BY ASSESSING OFFICER TO CHARGE MORE TAX. THEREFORE, IT IS NOT A CASE OF FURNISHING INACCURAT E PARTICULARS OF INCOME. IF THE BROKERS HAVE NOT PRODUCED BOOKS OF ACCOUNT, NO FAULT SHOULD BE FOUND WITH THE ASSESSEE. ALL THE TRANSACTIONS ARE SUBSTANTIATED THROUGH DOCUMENTARY EVIDENCES AND MATERIAL ON RECORD AND EVEN BROKERS HAVE BEEN IDENTIFIED. HE HAS SUBMITTED THAT QUANTUM AND PENA LTY PROCEEDINGS ARE DISTINCT AND INDEPENDENT. EVEN IF ADDITION ON MERIT HAVE BEEN CONFIRMED BY ITAT ALSO, IT 7 MAY NOT BE A CASE OF LEVY OF PENALTY. HE HAS RELIE D UPON FOLLOWING DECISIONS : I) DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS P.LTD. 322 ITR 158 IN WHICH IT WAS HELD AS UNDER : MERELY BECAUSE THE ASSESSEE CLAIMED DEDUCT/ON OF IN TEREST EXPENDITURE WHICH HAS NOT BEEN ACCEPTED BY THE REVENUE, PENALTY UNDER S. 271(L)(C) IS NOT ATTRACTED; MERE MAKING OF THE CLAI M, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO F URNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. II) DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS LAKHANI INDIA LTD. 324 ITR 73 IN WHICH IT WAS HELD AS UNDER: IN VIEW OF CONCURRENT FINDING RECORDED BY THE CIT(A ) AND THE TRIBUNAL THAT THERE WAS NO CONCEALMENT OR MISREPRES ENTATION BY THE ASSESSEE, IMPUGNED ORDER SETTING ASIDE THE LEVY OF PENALTY UNDER S. 271(L)(C) CANNOT BE HELD TO BE ERRONEOUS A ND NO SUBSTANTIAL QUESTION OF LAW ARISES. III) DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS KRISHNAN THYAGARAJAN SIVARAMA 172 TAXMAN 334 IN WHICH IT WAS HELD AS UNDER: APART FROM THE FACT THAT THERE ARE CONCURRENT FINDI NGS OF TWO AUTHORITIES BELOW, THE CASE OF THE ASSESSEE MERITS ACCEPTANCE. ON A PERUSAL OF THE RECORDS OF THE CASE IT IS FOUND THAT THE ASSESSEE HAD MADE A FULL DISCLOSURE OF ALL THE FACTS AS REQUIRED BY THE REVENUE AND THERE WAS NO QUESTION OF ANY INACCURATE PARTICULARS HAVING BEEN FURNISHED BY THE ASSESSEE WITH A VIEW TO GAINING AN Y ADVANTAGE. CONSEQUENTLY, NO SUBSTANTIAL QUESTION OF LAW ARISES . 8 6(I) ON THE OTHER HAND, LD. DR RELIED UPON ORDERS O F AUTHORITIES BELOW AND SUBMITTED THAT ASSESSEE ENTER ED INTO BOGUS TRANSACTION IN ORDER TO REDUCE TAX LIABI LITY, THEREFORE, ASSESSEE FURNISHED INACCURATE PARTICULAR S OF INCOME. LD. DR SUBMITTED THAT PENALTY IS STRICTLY A CIVIL LIABILITY. HE HAS RELIED UPON DECISIONS OF T HE SUPREME COURT IN THE CASES OF DHARMENDRA TEXTILE & PROCESSORS 306 ITR 277 AND ATUL MOHAN BINDAL 317 IT R 1. HE HAS SUBMITTED THAT FINDING OF FACTS RECORDED AGAINST THE ASSESSEE IN QUANTUM PROCEEDINGS ARE RELEVANT IN PENALTY PROCEEDINGS. 7. I HAVE CONSIDERED RIVAL SUBMISSIONS AND MATERIAL ON RECORD. THE FACTS NOTED ABOVE ARE NOT IN DISPUT E THAT ASSESSEE IN THE RETURN OF INCOME HAS DISCLOSED COMPLETE TRANSACTION OF SALE OF SHARES AND ALSO DISCLOSED EARNING OF LONG TERM CAPITAL GAIN ON SALE OF SHARES IN A SUM OF RS. 11,25,000/- WHICH IS THE BAS IS OF LEVY OF THE PENALTY AGAINST THE ASSESSEE. THE ASSESSEE, THUS, DISCLOSED COMPLETE FACTS AND DETAIL S NOT ONLY IN THE RETURN OF INCOME AND COMPUTATION OF INC OME BUT ALSO ALL THE FACTS WERE DISCLOSED TO THE ASSESS ING OFFICER AT THE ASSESSMENT STAGE. THE ASSESSEE FILE D RETURN OF INCOME AT RS. 14,83,440/- AND ASSESSMENT IS COMPLETED AT RS. 15,32,190/- MEANING THEREBY, ONLY MEAGER ADDITION OF RS. 48,750/- HAVE BEEN MADE. IT IS ALSO NOT IN DISPUTE THAT SHARES WERE PURCHASED IN PRECEDING ASSESSMENT YEAR 2002-03 THEREFORE, COULD 9 NOT BE SUBJECT MATTER OF THE ASSESSMENT IN ASSESSME NT YEAR IN APPEAL I.E. 2003-04. THE ASSESSEE, ADMITTE DLY, FILED COPIES OF THE PURCHASE BILLS AND SALE BILLS ALONGWITH COPIES OF THE ACCOUNTS OF ASSESSEE IN THE BOOKS OF BROKERS. ALL THE TRANSACTIONS OF SALES HA VE BEEN CONDUCTED THROUGH D-MAT ACCOUNT AND THROUGH BANKING CHANNEL. THE ASSESSEE ALSO FILED DETAILS T O SHOW THAT SHARES IN QUESTION HAVE BEEN LISTED IN AHMEDABAD STOCK EXCHANGE. THE AUTHORITIES BELOW HAVE NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE I N QUANTUM PROCEEDINGS BECAUSE TRANSFER OF SHARES HAVE NOT BEEN CONDUCTED THROUGH RECOGNIZED STOCK EXCHANGE. HOWEVER, THE ASSESSEE CLAIMED THAT THE S ALE OF SHARES HAVE BEEN MADE THROUGH VARIOUS REGISTERED STOCK EXCHANGE BROKERS AND PAYMENTS HAVE BEEN RECEIVED BY CHEQUE. THEREFORE, IT IS A CASE WHERE THE HEAD OF INCOME HAVE BEEN CHANGED BY THE AUTHORITIES BELOW FOR THE PURPOSE OF CHARGING HIGHER TAX FROM T HE ASSESSEE. THE ASSESSEE CLAIMED IN THE RETURN OF IN COME THE TRANSACTION TO BE EARNING OF INCOME ON ACCOUNT OF LONG TERM CAPITAL GAIN WHICH WAS CONSIDERED BY THE AUTHORITIES BELOW AS INCOME FROM UNDISCLOSED SOURCE S. 8. THE AUTHORITIES BELOW ALSO MADE ADDITION AGAINST THE ASSESSEE BECAUSE THE BROKERS HAVE NOT PRODUCED BOOKS OF ACCOUNT WHICH IS NOT WITHIN THE CONTROL OF THE ASSESSEE TO DIRECT THE BROKERS TO PRODUCE BOOKS OF ACCOUNT BEFORE ASSESSING OFFICER. HON'BLE DELHI HI GH 10 COURT IN THE CASE OF CIT VS NATH BROS. EXIM INTERNATIONAL LTD. 288 ITR 670 HELD AS UNDER : THE ASSESSEE HAD CLAIMED DIVIDEND INCOME AS HIS BU SINESS INCOME AND ACCORDING TO THE ASSESSEE IT WAS ENTITLED TO A DEDUCTION UNDER CLAUSE (BAA) OF THE EXPLANATION TO SECTION 80HHC(4C) OF THE INCOME-TAX ACT, 1961. THE ASSESSING OFFICER DISALLO WED THE CLAIM AND IMPOSED PENALTY. THE TRIBUNAL CAME TO THE CONCLUSION THAT THE ASSESSEE HAD DISCLOSED ALL THE FACTS, AND THERE-FOR E EVEN THOUGH IT HAD MADE AN ERRONEOUS CLAIM WHICH COULD NOT BE JUSTIFIE D IN LAW, THAT BY ITSELF DID NOT ATTRACT THE PENAL PROVISIONS OF THE ACT. ON APPEAL : TO THE HIGH COURT: HELD, DISMISSING THE APPEAL, THAT THERE WAS FULL DISCLOSU RE OF ALL RELEVANT MATERIAL. IT COULD NOT BE SAID THAT THE CO NDUCT OF THE ASSESSEE ATTRACTED THE PRO-VISIONS OF SECTION 271(L)(C). THE CANCELLATION OF PENALTY WAS JUSTIFIED. 8(I) HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS AMIT JAIN 351 ITR 74 HELD AS UNDER : THE ASSESSEE DECLARED AN INCOME OF RS. 2,60,73,558 FROM SHORT- TERM CAPITAL GAINS. THE ASSESSING OFFICER ON AN INT ERPRETATION OF THE RELEVANT PROVISIONS AND HAVING REGARD TO THE NA TURE OF TRANSACTIONS ASSESSED IT AS INCOME FROM BUSINESS. H E ALSO LEVIED PENALTY UNDER SECTION 271(L)(C) OF THE INCOME TAX A CT, 1961, TO THE TUNE OF RS. 58,45,899 ON THE GROUND THAT THE AS SESSEE HAD FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE COMMISSIONER (APPEALS) CANCELLED THE PENALTY. THIS WAS CONFIRMED BY THE TRIBUNAL. ON APPEAL : HELD, DISMISSING THE APPEAL, THAT THE AMOUNT IN QUE STION, WHICH FORMED THE BASIS FOR THE ASSESSING OFFICER TO LEVY PENALTY, WAS IN FACT TRUTHFULLY REPORTED IN THE RETURNS. IN VIEW OF THIS CIRCUMSTANCE, THAT THE ASSESSING OFFICER CHOSE TO T REAT THE INCOME UNDER SOME OTHER HEAD COULD NOT CHARACTERIZE THE PA RTICULARS OR REPORTED IN THE RETURN AS 'INACCURATE PARTICULARS OR AS 11 SUPPRESSION OF FACTS. THEREFORE, THE TRIBUNAL WAS N OT IN ERROR IN DELETING THE PENALTY. 9. SINCE ASSESSEE DISCLOSED COMPLETE FACTS IN THE RETURN OF INCOME AS WELL AS AT THE ASSESSMENT STAGE AND ALL THE TRANSACTIONS ARE CARRIED OUT THROUGH D- MAT ACCOUNT AND BANKING CHANNEL, THEREFORE, IT MAY NOT A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INC OME SO AS TO LEVY THE PENALTY AGAINST THE ASSESSEE. TH E DECISIONS RELIED UPON BY LD. COUNSEL FOR THE ASSESS EE ALSO SUPPORT THE CASE OF THE ASSESSEE THAT IT IS NO T A FIT CASE OF LEVY OF PENALTY. FURTHER, THE ASSESSING OF FICER IN THE ASSESSMENT ORDER INITIATED THE PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME BUT IN THE PENALTY ORDER, ASSESSING OFFICER LEVIED THE PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THERE FORE, ASSESSING OFFICER WAS NOT DEFINITE IN HIS CONCLUSIO N AND FINDING AS TO ON WHICH ACCOUNT PENALTY SHOULD B E IMPOSED AGAINST THE ASSESSEE. MAY BE THE ADDITION ON MERIT HAVE BEEN CONFIRMED CONSIDERING THE LONG TERM CAPITAL GAIN TO BE INCOME FROM OTHER SOURCES, BUT T HE FACTS CLEARLY DISCLOSE THAT IT IS NOT A FIT CASE OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 10. CONSIDERING TOTALITY OF THE FACTS AND CIRCUMSTANCES NOTED ABOVE, IN THE LIGHT OF THE DECI SIONS OF THE HON'BLE DELHI HIGH COURT REFERRED TO ABOVE, I AM OF THE VIEW IT IS NOT A FIT CASE FOR LEVY OF PENALT Y UNDER 12 SECTION 271(1)(C) OF THE ACT. I, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND CANCEL THE PENA LTY. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 17 TH JUNE, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD