10. itxa 1446-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. INCOME TAX APPEAL NO. 1446 OF 2010 The Commissioner of Income Tax - 18 .. Appellant Vs Gopilal B. Lund .. Respondent Mr. Suresh Kumar for the Appellant Mr. Subhash S. Shetty for the Respondent CORAM : J.P. DEVADHAR & A.A. SAYED, JJ. DATE : 18th JULY, 2011. P.C.: 1. Heard. 2. Whether the CIT(A) was justified in cancelling the penalty levied u/s. 271(1)(c) is the question raised in this Appeal. 3. The CIT(A) in paragraph 5 of his order has recorded a finding of fact which the Tribunal has confirmed by holding that there is no concealment of income or filing of inaccurate particulars of income on the part of the assessee. 4. The assessee had purchased an industrial gala in the year 1972 and the same was shown as a business asset in his 1 10. itxa 1446-10.doc proprietorship business in the name and style of M/s. Sheetal Industries upto 31st December 1999. After that date, the assessee discontinued his business and as such the industrial gala ceased to be an asset of the business. The assessee after discontinuation of the business, transferred the asset and held it in his personal capacity (not as a business asset) from that date as part of personal investment. The CIT(A) has further recorded a finding of fact that the assessee had furnished the details of the sale of the asset in the return of income filed u/s 139 of the Act and offered the income to tax as long term capital gains. Tribunal has further held the fact that the assessee ought to have declared the capital gains as a short term capital gains instead of long term capital gain, cannot be a ground for levying penalty under Section 271(1)(c) of the I.T. Act. We see no infirmity in the order passed by ITAT. Accordingly, the Appeal is dismissed with no order as to costs. [ A.A. SAYED, J ] [ J.P. DEVADHAR, J ] 2 10. itxa 1446-10.doc 3