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TMI Blog2012 (8) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of Rs. 2,89,217, by the Assessing Officer under section 158BFA(2) of the Act. The facts of the appeal, in brief, are that a notice was issued to the asses- see-respondent by the Assessing Officer on September 12, 2005, to show cause as to why penalty under section 158BFA(2) of the Act may not be imposed for concealing the income of Rs. 4,82,028 in the following heads : Rs. (i) IUI test 44,000 (ii) Plying of car 15,000 (iii) Household expenses 4,23,028 4,82,028 The assessee filed his reply dated September 19, 2005, and submitted that the alleged undisclosed income of Rs. 4,82,028 is purely on the basis of estimation and no such documents or evidence to this effect was found during the course of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that 70 slips of tests had been found and the amount was written only on four slips. The contention of the learned authorised representative that these tests had been carried on experimental basis cannot be accepted as a whole truth. Therefore, having regard to the facts of the case, we consider it reasonable to sustain this addition at Rs. 50,000 only and the order of the Commissioner of Income-tax (Appeals) is modified to this extent.' Further, in paragraph 10, the hon'ble Income-tax Appellate Tribunal with regard to the addition on account of plying of car has held as under : 'Having regard to the facts of the case and material before us, we are also of the opinion that this is a case of pure estimation of income from ply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under these circumstances, we do not find reason to interfere with the first appellate order, as the learned Commissioner of Income-tax (Appeals), on the basis of the ratio laid down in different decisions on the issue of penalty levied under section 271(1)(c) of the Act that the penal pro- visions cannot be attracted to cases where income of an assessee is assessed on estimate basis and the additions were made therein on estimate basis, has rightly deleted the penalty.' 6. In view of the above facts of the case as well as the court decisions, I am of the considered view that the penalty as imposed by the Assessing Officer under section 158BFA(2) of the Income-tax Act, 1961, is not justified and the same is hereby deleted." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act are in parimateria. That apart, it is also relevant to mention that imposition of penalty depends on the facts and circumstances of each case. In the present case, the Assessing Officer imposed the penalty on so-called three items of so-called concealed income. Each item was examined, thoroughly and in detail, by the Commissioner of Income-tax (Appeals) as well as the Income-tax Appellate Tribunal and by a reasoned order, both came to a conclusion that additions are based on estimation only. Afact or allegation based on estimation, cannot be said to be correct only, it can be incorrect also. Therefore, in the facts and circumstances of the case, penalty was wrongly imposed by the Assessing Officer. In these cir- cumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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