IN THE HIGH COURT OF DELHI AT NEW DELHI 
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   ITA 531/2013  
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 THE COMMISSIONER OF INCOME TAX - V..... Appellant 
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 Through Mr.  Sanjeev Sabharwal, Advocate. 
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 versus 
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 SHEKHAR DAS GUPTA   ..... Respondent 
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 Through Ms. Sugandha Anand, Advocate. 
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 CORAM: 
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 HON'BLE MR. JUSTICE SANJIV KHANNA 
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 HON'BLE MR. JUSTICE SANJEEV SACHDEVA 
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 O R D E R 
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    26.11.2013 
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 This appeal by the Revenue under Section 260A of the Income Tax 
 Act, 1961 (Act, for short) impugns deletion of part penalty by the 
 Commissioner of Income Tax (Appeals) which order has been affirmed by the 
 tribunal.  At this stage, we notice that the Commissioner of Income Tax 
 (Appeals) has held that the assessee was liable for concealment penalty 
 under Section 271(1)(c) in respect of the short-term capital gain, which 
 was declared as long-term capital gains.  However, in respect of sale of 
 shares allotted to the assessee under ?Employees Stock Option Plan? of 
 Oracle Corporation, USA, penalty has been deleted.  The assessee, it is 
 accepted, had sold the said shares on 13th May, 2003 and the shares 
 allotted to him on 12th December, 1997 and 10th July, 1998. 
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 Details of the said transactions were made available and duly stated 
 in the return by the respondent-assessee.  On this aspect there is no 
 dispute.  The assessee had also paid advance tax @ 20% on the capital 
 gains on sale of the said shares.  However, in the income tax return, he 
 had applied the tax rate of 10%.  The Assessing Officer has held that the 
 tax rate applicable in terms of the Explanation to Section 112(1) was 20% 
 and not 10% as the shares were not listed in an Indian stock exchange but 
 were listed abroad.  The stand of the assessee was that he had acted on 
 the legal advice of his Chartered Accountant on the said taxation issue. 
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 Keeping in view the factual matrix and explanation furnished by the 
 assessee, the first appellate authority and the tribunal have held that 
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 the assessee has been able to discharge the onus under Explanation 1 to Section 271(1)(c) of the Act.  The tribunal has noticed other errors made 
 on computation of long-term capital gains on the sale of the said shares, 
 to the detriment of the respondent-assessee. In fact, the long-term 
 capital gain on sale of the said shares was Rs.1,39,09,213/- and not 
 Rs.1,65,84,079/- as declared by the respondent-assessee in the income tax 
 return.  The first appellate authority and the tribunal have taken a 
 holistic and broad view and have examined various aspects and issues and 
 thereafter arrived at a conclusion that there were lapses on the part of 
 the Chartered Accountant, who had prepared the return.  The assessee had 
 acted bonafidely as he had duly declared and stated the entire 
 transaction.  In fact, the figure of capital gain as declared was higher 
 than the amount which was actually chargeable. 
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 In these circumstances, we are not inclined to entertain the present 
 appeal and the same is dismissed. 
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 SANJIV KHANNA, J. 
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 SANJEEV SACHDEVA, J. 
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 NOVEMBER 26, 2013 
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 NA 
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 $ 04 
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