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2019 (6) TMI 1284 - AT - Income TaxAddition of peak value of investment as Unexplained income - income estimated of profit by applying the provisions of section 44AF of the Act @ 5% of total turnover - HELD THAT:- Estimating the profit @ 5% to the tune of ₹ 2,12,550/- u/s 44AF as unexplained income by CIT (A) is concerned, AR for the assessee has accepted the same and has not pressed Ground no.1 to that extent. So, we confirm the findings of ld. CIT (A) as to estimating the profit @ 5% of the total turnover of ₹ 42,50,993/-. We are inclined to agree with the contention raised by the ld. AR because when profit @ 5% on the total turnover has been estimated by the CIT (A) then peak value of the investment cannot be treated as unexplained income which would otherwise amount to double addition which is not permissible under the Act. So, we order to delete the addition made by the CIT (A) by making the peak value of the investment. Penalty u/s 271(1)(b) - Reopening of assessment u/s 148 - non compliance of notice sent in the name of Alam Zafar in place of Zafar Alam - no proof of service - HELD THAT:- CIT (A) has confirmed the penalty on the basis of assumptions and presumptions that when the notice to the assessee was issued in the name of Alam Zafar in penalty proceedings and he attended the penalty proceedings then he must have been served in the quantum proceedings also. Penalty cannot be imposed on the basis of assumptions and presumptions rather to levy the penalty the Revenue has to make out a categoric case that the assessee was served upon by proving on record acknowledgements to show that assessee has received the notice and has failed to comply with the same by attending the proceedings. We are of the considered view that when the Revenue has failed to prove the service of notice upon the assessee, question of levying the penalty u/s 271(1)(b) does not arise, hence penalty levied u/s 271(1)(b) is ordered to be deleted. - Decided in favour of assessee.
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