Girish Chandra Gupta, J. - (1.) THE subject -matter of challenge in this appeal is a judgment and order dated 19th August, 2011, passed by the learned Income Tax Appellate Tribunal dismissing the appeal of the Revenue. The facts and circumstances of the case briefly stated are as follows: - During the assessment year 2005 -2006 short -term capital gain amounting to Rs. 1,62,05,046/ - was returned by the assessee which was treated by the Assessing Officer as business profit on the ground that the purchase and sale of the shares took place in quick succession which indicates the intention of the assessee to embark upon an adventure rather than engaging in investment. The Assessing Officer, however, allowed short -term capital gain in respect of some shares, which the assessee had as an opening balance during the assessment year 2005 -2006.
(2.) THE Assessing Officer also proceeded to impose penalty under Section 271(1)(c) read with Section 274 of the Income Tax Act for furnishing inaccurate particulars. Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal. The Commissioner of Income Tax reversed the assessment. The Revenue preferred an appeal to the Income Tax Appellate Tribunal which was dismissed by the judgment under challenge. The learned Tribunal held as follows: - After hearing the rival submissions and on careful perusal of materials available on record, it is observed that out of the total 162 lakhs of short term capital gains an amount of 159 lakhs are relating to Jubilant Orgaosis Ltd. In the case the assessee is already having shares of 045 as on 31.03.2004 in the investment portfolio and the AO had accepted the sale of the said shares as short term capital gain in the assessment order whereas the subsequent shares purchased by the assessee obtained as bonus shares has been treated by the AO as business income without assigning the reasons. Therefore, in our considered opinion the AO is not justified to treat part of the transactions in respect of some of the shares of the same company as short term capital gain and the balance as business income without bringing any material to this effect.
(3.) AGGRIEVED by the order of the Tribunal the Revenue has come up in appeal. The appeal was admitted on the basis of the following questions put toward by the Revenue: - i) Whether on the facts and in the circumstances of the case the Tribunal was justified in law in directing the Assessing Officer to treat the surplus of Rs. 1,62,05,046/ - earned by the assessee on sale and purchase of Shares as short term capital gains instead of business income? ii) Whether on the facts and in the circumstances of the case the Tribunal was justified in law to delete the imposition of penalty under Section 271(1)(c) of the said Act to the tune of Rs. 42,35,593/ - ?;