IN THE HIGH COURT OF DELHI AT NEW DELHI 
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  09.12.2010 
 Present :        Ms.Suruchi Aggarwal, Advocate for the appellant. 
 Mr. Manu K.Giri, Advocate for the respondent. 
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 + ITA No.1977/2010 
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 Penalty was also imposed on the ground that in the return filed by 
 the assessee, the assessee had claimed brought forward losses which were not 
 allowed by the Assessing Officer. As per the ITAT as there was a change in more 
 than 51% of the share holding pattern.  The tribunal had held that the penalty 
 on this count in this manner claim of brought forward loss amounting to 
 Rs.1,27,424/- was made as set off in computation of income.  The Tribunal had 
 accorded the finding of the fact that there was an inadvertent mistake by the 
 assessee with regard to change in share holding pattern during the course of 
 assessment proceedings itself.  The assessee filed letter dated 23.12.2005 and 
 withdrew the aforestated claim.  So far as this aspect is concerned no question 
 of law arises. 
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 Admit on the following substantial question of law i.e. 
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 ?1.Whether the treatment given by the assessee company to the        short terms 
 capital asset as a long term capital asset is not a        colorable device used 
 by the assessee company to pay lower        rate of tax on the gain accruing 
 from the sale of immovable        property under the garb of ?Long Terms Capital 
 Gain? which        was actually the short terms capital gain attracting normal 
 rate of tax? 
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 2. Whether AO was justified in imposing penalty under Section 271(1)(c) as the 
 income derived by the assessee was taxable at the normal rate of tax i.e. 35% 
 under short terms capital gain, whereas in the return of income the assessee 
 declared this income as Long Terms Capital Gain, and paid tax at a lower rate 
 i.e. 20% and thus furnished inaccurate particulars of its income?? 
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 With the consent of the parties, the matter is heard finally. 
 Order is reserved. 
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 ???????????????A.K.SIKRI, J. 
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 INDERMEET KAUR, J. 
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 DECEMBER, 09, 2010 
 nandan 
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