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Showing 461 to 480 of 1733 Records

2019 (6) TMI 1275

CENVAT credit - irregular availment of cenvat credit on various Bills of Entry - it was alleged that appellant had not produced Bills of Entry for defacement as required by law that prevailed during the relevant period - it was alleged that they have availed credit of ₹ 4,73,349/- 2/3 days prior to receipt of the inputs within the factory - also alleged that they have availed irregular credit of ₹ 27,446/- on goods which were not received in the factory at all.

Disallowance of credit to the tune of ₹ 4,73,349/- and ₹ 27,446/- the allegation is that with respect to ₹ 4,73,349/- the credit entered in RG.23A Part II was made before receipt of the goods into the factory - HELD THAT:- Their mere allegation is that credit has been availed on the inputs before receipt of such goods into the factory. There is also no case that such inputs were not used in manufacture of finished products. Taking these facts into consideration, I am of the view that the availment of credit by making entries in RG.23A prior to receipt of the goods into the factory is only a procedural one and the substantive beneficial right of credit cannot be denied for such procedural lapse.

Denial of credit of ₹ 27,446/- HELD THAT:- appellant has failed to establish that inputs were actually received into the factory. Credit in respect of ₹ 27,446/- is therefore disallowed and the demand is sustained along with interest. However, penalty in this regard is set aside as the penalty imposed is only composite penalty for both the issues. Further, the appellant has put forward explanation that these irregular availments occurred only because there was large number of documents to be entered and due to inadvertence the entries were omitted.

The credit availed in respect of ₹ 4,73,349/- is eligible and the demand in respect of the same requires to be set aside - appeal allowed in part.
2019 (6) TMI 1274

Imposition of penalty u/s 78 of FA - Suppression of facts or not - intent to evade - failed to pay service tax on the amounts so collected towards Business Auxiliary Services from October 2013 onwards - bonafide belief - short payment was later paid alongwith interest - HELD THAT:- In the impugned order, the Commissioner (A) has set aside the demand of ₹ 50,43,406/- on the ground that the appellant has been paying the service tax by debiting their CENVAT account every month. Further, the Commissioner (A) has also found that the appellant has paid ₹ 7,69,433/- being the short-paid service tax for the month of October 2014 and December 2014 along with interest in May 2015 but still the Commissioner (A) imposed the penalty of ₹ 3,84,717/- under Section 78.

Once the appellant has paid the service tax along with interest, he is not required to pay penalty under Section 78.

Appeal allowed - decided in favor of appellant.
2019 (6) TMI 1273

Imposition of penalty - illegal diversion of goods - re-warehousing certificates were not received - appellant has alleged that the EOU was sourcing various raw material duty free from manufacturer and diverting the same in the open market in violation of the Central Excise Rules - HELD THAT:- It is apparent that the appellants were not careful enough and were willing party to the diversion of goods by the consignee. In this regard, the affidavit filed by the transporter regarding delivery of goods at the premise of M/s Resham Exports also appears to have been obtained without knowledge of the transporter. In this regard the observation of the Commissioner in the impugned order reproduced above becomes relevant. From the said observation, it is seen that Shri Abhinandan Kataria, Manager of M/s Vardhaman and Shri Harish Natwarlal Bhatt, Proprietor of M/s Nirav in their statements have admitted that goods cleared by M/s Modern have been illicitely diverted. It is also seen that these submissions are supported by the statements of Shri Bodu Gulam Shaikh which was the representative of the consignee involving in the diversion of the goods.

It is seen from the statements of Shri Anil Kataria dated 02.04.2004 that he was aware of the diversion of goods after clearance from the factory. It is also admitted position of the appellant that Shri Anil Kataria was their regular transporter. In the statements of Shri H.N. Bhatt dated 07.07.2004 he had reaffirmed that he has informed the representatives of appellant namely Shri Manmohan Agarwal about the diversion of goods and route. He also confirmed that Shri VK Sharma, was also aware of the facts. Another factor which is relevant is that during the short period of about 10 days they had cleared almost 100 consignments weighing 884 tonnes to one party. This fact itself should have raised alarm bells and doubts in appellant’s organization.

In any case, it was responsibility of appellant’s to ensure delivery of goods - it is apparent that the appellants were aware of the diversion of goods en-route.

Penalty upheld - appeal dismissed - decided against appellant.
2019 (6) TMI 1272

CENVAT Credit - input services - canteen services - denial mainly on the ground that after the amendment in the definition of input service w.e.f. 01/04/2011, canteen services / outdoor catering services has been excluded from the input services vide Rule 2(l)(C) of CCR, 2004 - Time Limitation - HELD THAT:- The issue of CENVAT credit on outdoor catering service has been finally settled by the Larger Bench of this Tribunal in the case of M/S. WIPRO LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-III. [2018 (4) TMI 149 - CESTAT BANGALORE] wherein the Larger Bench has held that outdoor catering service is not eligible for input service credit post amendment dt. 01/04/2011 vide Notification No.3/2011 dt. 01/03/2011.

Time Limitation - HELD THAT:- The appellant had a bona fide reason to believe that he is entitled to CENVAT credit as the issue relates to interpretation and therefore it cannot be alleged against the appellant that he has suppressed the material fact with intent to evade payment of duty - extended period cannot be invoked - the disputed service has been availed for the period from April 2011 to October 2013 whereas the show-cause notice issued on 02/01/2015 which is clearly beyond the normal period of one year as provided under the Act - demand is barred by limitation of time.

Appeal allowed - decided in favor of appellant.
2019 (6) TMI 1271

Principles of natural justice - validity of assessment order - the objections of the writ petitioner have been rejected summarily in one sentence without giving any reason as to why and how the objections are rejected - HELD THAT:- This Court has also put in a clear caveat and directed the authorities, not to be solely guided by the proposals submitted by the inspecting authorities. Notwithstanding the above obtaining position, a perusal of the impugned order reveals that the Assessing authority i.e., sole respondent has merely gone by the proposal given by the Enforcement Wing of the department. With regard to the detailed objections of the writ petitioner, in a cryptic manner, the Assessing authority has rejected the same without giving any reason as to why and how the same are rejected.

The respondent should necessarily make an assessment independent of the proposal given by the Enforcement Wing of the department has been laid down by this Hon'ble Court in NARASUS ROLLER FLOUR MILLS VERSUS THE COMMERCIAL TAX OFFICER [2015 (4) TMI 361 - MADRAS HIGH COURT] - there is no disputation that 'Narasus Sarathy Enterprises Private Limited case' principle is now governing the field.

Impugned assessment order set aside - Respondent is directed to assess afresh, after giving a personal hearing to the petitioner's duly authorized representative and after giving opportunity to the petitioner to file requisite records and documents - petition allowed by way of remand.
2019 (6) TMI 1270

Validity of assessment order - principles of natural justice - service of order - change of address - HELD THAT:- After the writ petitions were heard out for some time, as much as the writ petitions were taken up for disposal by consent, it was agreed by both counsel that an order can be passed by consent to the effect that the petitioner Assessee will be given an opportunity to submit all the records within a prescribed time frame subject to the petitioner paying 15% of the disputed tax (obviously excluding penalty) as per the amount set out in the respective impugned orders. In other words, disputed tax and 15% of the same is in accordance with the amount set out in the respective Assessment Orders.

The impugned order of assessment in each of these writ petitions are set aside and the matter is remanded back to the sole respondent for assessment afresh.
2019 (6) TMI 1269

Input tax credit - inputs/capital goods - purchase of motor vehicles - appellant engaged in supplying cabs on a rental basis - HELD THAT:- Rent-a-cab is not defined in the GST Act. Nature of the Applicant’s service is, therefore, derived from what is stated in the Application and what can be ascertained from the invoices. The Applicant provides cab rental service inter alia to institutions like West Bengal Postal Service. The recipient, as discussed in para 4.6, has to pay the Applicant a certain amount per month as consideration irrespective of what distance the cab travels in a particular month. The additional amount has to be paid if the cab is retained for extra hours or requisitioned on holidays. To cover the cost of fuel, the distance travelled needs to be brought into play, but only if it crosses a certain threshold.

The nature of the service the Applicant provides is classifiable under SAC 9966 as renting of a motor vehicle. The credit of GST paid on the [inward supply] of motor vehicles for the supply of the Applicant’s service is not admissible in terms of section [17(5)(a)] of the GST Act.
2019 (6) TMI 1268

Nature of transaction - supply of goods or transfer of property? - Applicant has procured two contracts from M/s. Mackintosh Burn Ltd (MBL) for filling in the compound, tank, low land etc. with silver sand and earthwork in layers, including spreading and compacting the same at the district Correction Home, Baruipur - whether it is classifiable as a supply of sand (HSN 2505)?

HELD THAT:- In terms of the description of the work, contained in the work orders, the Applicant is required to fill in the foundation or plinth by silver sand in layers and consolidating the same by saturation with water ramming. The work also involves earth work for filling in the compound, tank, low land, ditches etc. with good earth spread in layers, including breaking clods and consolidating the same by ramming and dressing. It is, therefore, not a contract for the supply of goods, but the transfer of property in such goods in the course of preparing the site for construction of the New Central Correctional Home at Baruipur. It, therefore, amounts to improving and modifying land - an immovable property and is works contract, as defined under section 2(119) of the GST Act.

The Applicant’s supply is, therefore, classifiable as site preparation service (SAC Group 99543) and taxable @ 18% under Sl No. 3(xii) of Notification No. 11/2017-CT (Rate) dated 28/06/2017 (corresponding State Notification No. 1135-FT dated 28/06/2017), as amended from time to time. In this respect, this Authority agrees with the views of the concerned officer from the Revenue.
2019 (6) TMI 1267

Learned Single Judge had omitted to consider and adjudicate upon other grounds raised in the writ petition - Constitutional validity of Section 174 of the KSGST Act - time limitation - HELD THAT:- Issue decided in the case of M/S. SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1, AND OTHERS [2019 (2) TMI 300 - KERALA HIGH COURT] where it was held that The petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017

Remittance of the writ petition for fresh consideration and disposal on the grounds raised other than the validity of Section 174 of the KSGST Act, would serve the ends of justice - The writ petition is restored on the files of this Court.
2019 (6) TMI 1266

Profiteering - footwear - Respondent had not passed on the benefit of rate reduction of GST from 18% to 5% to him by way of commensurate reduction in price - contravention of provisions of Section 171 of the CGST Act, 2017 - HELD THAT:- It has been revealed that the Central Govt. vide Notification No. 18/2018- Central Tax (Rate) dated 26.07.2018 had reduced the rate of GST from 18% to 5% in respect of footwear priced between ₹ 500/- to ₹ 1000/-, with effect from 27.07.2018 and the benefit of the same was required to be passed on to the recipients by the Respondent as per the provisions of Section 171 of the CGST Act, 2017.

It is evident that the Respondent had increased the base price of the product from ₹ 592.37/- to ₹ 665.71/-, when the rate of tax was reduced from 18% to 5% with effect from 27.07.2018. Thus, by increasing the base price of the product the benefit of reduction in tax rate was not passed on to the recipients and hence he has contravened the provisions of Section 171 of the CGST Act, 2017. The records clearly show that the Respondent has supplied a total number of 6380 footwears out of which 1451 were impacted by the reduction in the rate of GST from 18% to 5% w.e.f. 27.07.2017 - the Respondent is hereby directed to reduce the price of the products as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, by making commensurate reduction in the prices, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients.

Penalty - HELD THAT:- Respondent has issued incorrect invoices while selling the above products to his recipients as he had not correctly shown the basic prices which he should have legally charged from them. The Respondent has also collected additional GST on the increased prices through the incorrect tax invoices which would have otherwise resulted in further benefit to the customers which he had failed to pass on. It is also established from the record that the Respondent has consciously acted in contravention of the provisions of the CGST Act, 2017 by issuing incorrect invoices which is an offence under Section 122 (1) (i) of the above Act - respondent is liable for imposition of penalty under Section read with Rule 133 (3) (d) of the CGST Rules, 2017 - In the interest of natural justice, notice may be issued to the Respondent to show cause as to why penalty should not be imposed on him as per the provisions of Section 122 of the CGST Act, 2017 read with Rule 133 (3) (d) of the CGST Rules, 2017.

Application disposed off.
2019 (6) TMI 1265

Profiteering - supply of “Sanitary Napkins” - benefit of reduction in GST rate had not been passed on to the recipients by way of commensurate reduction in price - HELD THAT:- It's an admitted fact that the rate of tax on the product was reduced from 12% to NIL w.e.f. 27.07.2018 without the benefit of ITC. The DGAP vide Annexure-15 of his Report dated 29.03.2019 has found that the Respondent had increased his base price inspite of reduction in the rate of tax from 12% to NIL. Accordingly the DGAP has arrived at profiteered amount of Rs, 5,282.51/- which includes the profiteered amount of ₹ 894.88/- on the closing stock as on 26.07.2018 and ₹ 4,387.63/- on the fresh stock for the period 27.07.2018 to 30.09.2018. The Respondent has neither disputed the quantity nor the profiteered amount as has been arrived at by the DGAP.

The Respondent is hereby directed to reduce the price of the product as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, by making commensurate reduction in the price, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients.

Penalty - HELD THAT:- Respondent has issued incorrect invoices while selling the above products to his recipients as he has not correctly shown the basic prices which he should have legally charged from them. The Respondent has also collected additional GST on the increased prices through the incorrect tax invoices which would have otherwise resulted in further benefit to the customers which he had failed to pass on. It is also established from the record that the Respondent has consciously acted in contravention of the provisions of the CGST Act, 2017 by issuing incorrect invoices which is an offence under Section 122 (1) (i) of the above Act - respondent is liable to penalty - In the interest of natural justice, notice may be issued to the Respondent to show cause as to why penalty should not be imposed on him as per the provisions of Section 122 of the CGST Act, 2017 read with Rule 133 (3) (d) of the CGST Rules, 2017.

Application disposed off.
2019 (6) TMI 1264

Allowability of advertisement expenditure as revenue expenditure - HELD THAT:- High Court has adverted to two circumstances, while upholding the decision of the Tribunal: firstly, for the previous Assessment Year 2008- 2009, the same view of the Tribunal regarding the allowability of advertisement expenditure as revenue expenditure has not been challenged; secondly, the High Court has adverted to its own decision in the case of CIT v. Pepsico India Holdings India (P) Ltd. . [2012 (6) TMI 256 - DELHI HIGH COURT] . The learned Additional Solicitor General attempted to distinguish the decision on the ground that it dealt with advertisements on hoardings. We find no substance in that distinction

In our considered view, the view which has been taken by the Tribunal and, sustained by the High Court, does not call for interference under Article 136 of the Constitution.
2019 (6) TMI 1263

Deemed dividend u/s 2(22)(e) - loans given to the assessee by company wherein assessee holds 22.3% share holdings - HELD THAT:- In the case of Schutz Dishman Bio-Tech Private Limited [2016 (1) TMI 84 - GUJARAT HIGH COURT] held that the amounts were not in the nature of Inter Corporate Deposits and were, therefore, not to be treated as loans or advances as contemplated in Section 2(22)(e) of the Act.

The Revenue is pressing for admission of this Tax Appeal only with regard to the transaction with B.R. Laboratories Private Limited. Therefore, we are not inclined to entertain this Appeal so far as the transaction with Schutz Dishman Bio-Tech Private Limited is concerned.

We re-frame the question no.1 as - “Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of ₹ 16,03,933=00 made on account of the deemed dividend under Section 2(22)(e) of the Act for the Assessment Year 2005-06 in so far as the transaction with B.R. Laboratories Private Limited is concerned ?”
2019 (6) TMI 1262

Disallowance of Animal Breeding Expenses - nature of expenses - revenue or capital expenditure - HELD THAT:- The question, as raised, is no longer res integra in view of the decision of this Court in the case of Principal Commissioner of Income Tax 2, Vadodara vs. Gujarat Cop, Op. Milk Marketing Federation Ltd. [2018 (10) TMI 1385 - GUJARAT HIGH COURT] as held the activities carried under the said programme were all aimed at fertility improvement amongst milk animals. As part of the programme, the typical reasons for infertility such as improper practice in calf rearing, low body weight of animals, lack of nutrition/mineral, poor health condition, lack of awareness amongst farmers about improved breeding practices etc. In furtherance of such objectives, assessee would hold camps for village awareness, in select villages would carry out tagging and registration of animals, would hold fertility camps, would carry out mass deworming programmes, would distribute mineral mixture, carry out vaccination at mass scale, provide balanced cattle feed etc.

The expenditure was general in nature and aimed at improving the practices for better fertility amongst milk animals by addressing the issues which caused infertility. The expenditure therefore was for the purpose of its business and would not be co-relatable to any tangible returns which can be expected out of such expenditure. - Decided against revenue
2019 (6) TMI 1261

Reassessment u/s 147 r.w.s 148 - deduction u/s 10A - original assessment u/s 143(3) - reason to believe that the income chargeable to tax has escaped assessment - full and true disclosure of the material facts at the time of original assessment - alleged that Master Service Agreements, Work Orders, Scope of Works and invoices were not placed before the AO at the time of the original assessment - borrowed satisfaction

HELD THAT: It is held that ‘Note’ on Software development projects and the various stages of software development placed by the assessee before the AO discloses the stages wherein the petitioner – assessee was required to carry out the project at the customer’s site/onsite and the same are reflected in the Annual Reports. Considering these materials, deduction u/s 10A was allowed in the order passed u/s 143(3). In such circumstances, it is presumed that AO has examined the entitlement of deduction u/s 10A by the assessee in all angles. Withdrawal of the deduction allowed u/s 10A based on the assessment order relating to the assessment year 2007-08 is without application of mind and nothing but change of opinion, which tantamounts to review and the same is not permissible to initiate the proceedings u/s 147/148 of the Act.

This Court is of the opinion that there was no material on record before the Assessing Authority to establish failure on the part of the assessee to disclose truly and fully the relevant material while passing the original assessment order u/s 143(3) and as such the respondent authority had no jurisdiction to invoke Section 147 and 148 of the Act for the assessment years in question. - Writ petitions are allowed.
2019 (6) TMI 1260

Penalty u/s 271(1)(c) - in appeal against quantum addition ITAT has remitted the matter back to the original authority - HELD THAT:- In the light of the aforesaid trajectory pending writ petition, particularly the order of ITAT as well as the hearing in the instant case today before this Court impugned order dated 19.03.2019 is set aside.

Respondent/original authority, shall first redo the assessment pursuant to the aforesaid remand order passed by ITAT in ITA No.2840/Chny/2018 dated 17.05.2019.

Post assessment, in accordance with the remission made by the ITAT subject to outcome of the assessment proceedings before the respondent and obviously depending on the assessment, it is open to the respondent to initiate penalty proceedings afresh - writ petition is disposed off
2019 (6) TMI 1259

Delayed payment of employee Contribution of PF and ESI - expenditure was suo-moto disallowed by the assessee while filing the return of income but pleaded for the allowance of the same during assessment proceedings - HELD THAT:- Keeping in view the fact that assessee’s correct income was to be computed and keeping in view the decision of Jute Corporation of India Ltd. V/s CIT [1990 (9) TMI 6 - SUPREME COURT] , we admit the assessee’s claim and restore the issue back to the file of Ld. AO to examine the same. The Ld. AO is directed to allow the same after verifying that the aforesaid contributions / payments were deposited before due date of filing of return of income and secondly, the deduction of the same was not claimed by the assessee in any other Assessment Year. The assessee is directed to substantiate the same. This ground stands allowed for statistical purposes.

Interest income assessment - correct head of income - Business income or Income from Other Sources - HELD THAT:- Interest component include interest on income tax refund for ₹ 155.77 Lacs, which is, undoubtedly, assessable as income from other sources. - the decision of lower authority, to that extent, stand confirmed.

The balance interest component as stated to be earned by the assessee from Bank deposits except for assessee’s submissions, the aforesaid facts are not forthcoming. AR has submitted that the fixed deposits were kept to facilitate issuance of bank guarantees and to meet certain business obligations. These facts require examination & verification by AO. Therefore, we deem it fit to restore the matter back to the file of Ld.AO for re-adjudication in the light of these submissions. The assessee is directed to substantiate the same and demonstrate the business nexus of these deposits and justify assessability of the same as business income. The ground stands partly allowed for statistical purposes.

Disallowance on account of foreign exchange fluctuation loss - HELD THAT:- We direct AO to ascertain that the facts in this AY are pari-materia the same as in earlier years. AO is directed to examine the fact that the aforesaid liabilities have crystalized during impugned AY as per the terms of the settlement and these liabilities has fully been discharged by the assessee by making actual payment.

Further, similar treatment has been given by the assessee to resultant gain, if any, arising out of these transactions in subsequent years. Both these grounds stand allowed for statistical purposes.

Adjustment of foreign exchange losses from Book Profits u/s 115JB - HELD THAT:- The said matter also stands restored back to the file of Ld. AO. The same may be re-adjudicated in terms of the stand taken against ground nos. 1 & 2.
2019 (6) TMI 1258

Income estimation - Extra profit by applying GP Rate at 6% on the basis of average gross profit of other entities engaged in the trade of wholesale liquor business - AO neither pointed out any defect in the books of accounts nor rejected u/s 145 (2) - HELD THAT:- Addition to the book results of the assessee without rejecting the books of accounts. To reject the books of accounts the learned assessing officer must find out latent, patent, and glaring defects in the books of accounts.

In the present case, the AO has not found any defect in the books of accounts. Merely on the basis of comparison of gross profit with other parties, he has made the addition to the gross profit of the assessee. The learned departmental representative could not point out any infirmity in the order of the learned CIT (A ) and further failed to justify that without rejecting the books of accounts by finding out the latent, patent and glaring defects in the books of accounts whether the book results which are audited can be disturbed or not. On perusal of the order of the learned assessing officer, we did not find that the learned assessing officer has pointed out any defect in the books of accounts of the assessee.

The learned AO also did not make any verification of various expenditure but has merely compared the gross profit of other entities without giving any benefit of difference in the business model, product dealt with, geographical area operated in et cetera. In view of this, we dismiss ground number 1 and 2 of the appeal of the learned assessing officer.
2019 (6) TMI 1257

Penalty u/s 271(1)(c) - defective notice - penalty notice have been issued without striking off one of the twin charges for levy of the penalty - HELD THAT:- As held by the Hon'ble Supreme Court in CIT Vs. SSA Emerald Meadows [2016 (8) TMI 1145 - SC ORDER] wherein, it has been held that notice issued by the ld AO u/s 274 read with section 271(1)(c) is bad in law as it did not specified as to which limb of that section the penalty proceedings have been initiated.

Respectfully following the decisions of the coordinate bench in case of sister concern of the assessee, we cancel the penalty as none of the charges of the twin charges were struck off. Accordingly, additional grounds raised by the assessee are allowed and appeal of the assessee succeeds on this ground. As we have quashed the penalty on the issue of validity of notice, other, issues in the appeal becomes academic. Accordingly, appeal of the assessee is allowed quashing penalty levied u/s 271(1)(c) - Appeal of the assessee is allowed.
2019 (6) TMI 1256

Reopening of assessment u/s 147 - notice issued after expiry of four years from end of the relevant assessment year - HELD THAT:- Notice u/s 148 was issued after expiry of four years from end of the relevant assessment year. Notice was issued on 21.11.2014 whereas four years for the Asstt.Year 2009-10 will expire on 31.3.2014. Since scrutiny assessment was also there in this case, and in that situation, proviso appended to section 147 would come to the rescue of the assessee. The interdiction in the proviso appended to section 147 puts an embargo in the exercise of power at the end of the AO in cases where scrutiny assessment has taken place and four years have expired from the end of relevant assessment year.

In such cases, the assessment cannot be reopened unless it its demonstrated that income has escaped assessment on account of failure on the part of the assessee to disclose all material facts fully and truly in respect of his assessable income. A perusal of the reasons would indicate that no such circumstances have been pressed by the AO. He has re-appreciated trial balance-sheet which is also available to him when original assessment order was passed. Therefore, reassessment is not sustainable. It deserves to be quashed. Accordingly, we quash the re-assessment order.

Levy of penalty u/s 271(1)(c) - HELD THAT:- Sub-clause (iii) of section 271(1)(c) provides mechanism for quantification of penalty. It contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable by him, which shall not be less than , but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income or furnishing of inaccurate particulars of income.

The quantification of the penalty is depended upon the addition made to the income of the assessee. In the present case, since we have already quashed re-assessment order, the very basis for computation of such penalty has been extinguished. Therefore, no penalty is imposable on the assessee. It is cancelled and ground of appeal of the assessee is allowed.