TMI Blog2013 (11) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... hakar Reddy, AM,JJ. For the Appellant : Sh. P. K. Jain, C.A. For the Respondent : Ms. Shumana Sen, Sr. D. R. ORDER Per J. Sudhakar Reddy, AM. This is an appeal filed by the Assessee directed against the order of the Ld.CIT(A)-XIII, New Delhi dated 24.04.2012 pertaining to the Assessment Year 2006-07, wherein he confirmed the penalty order passed u/s 271(1)(c ) of the Income Tax Act, 1961. 2. Facts in brief:- The assessee company and is engaged in the business of construction work. It filed its return of income on 15.12.2006 showing total income at Rs.10,18,101/-. The Assessing Officer, during the course of assessment proceedings, asked the assessee to furnish details of site wise material consumed and labour expenses. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the authorities below, case laws cited, we hold as follows. 6. This is a case where the assessee agreed to determination of net profit @ 5% of total turnover as he could not furnish details of site wise material consumed and labour expenses incurred, to the satisfaction of the Assessing Officer. The assessee's Representative had submitted that the expenses in question depend on the stage of work being undertaken by the assessee and that in some contracts there is only labour element as the material is supplied by the contractee. The Assessing Officer was not satisfied with this Explanation. He applied the decision of the Hon'ble Supreme Court in the case of K.P.Madhusudan vs. CIT, 251 ITR 99, the Ld.Commissioner of Income Tax (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that was Rs.40,73,180/- (evident from the calculation and documents placed on record before the Tribunal). The impugned judgement has taken notice of this fact. 12. The offer made by the assessee was on the basis that it could not give the details of the parties, and in order to buy peace, the Assessing Officer was requested to tax the gross receipts on net profits basis. This, as noticed earlier, resulted in addition of over Rs.51 lakhs, which represented more than the amount disallowable u/s 40A(3). 14. In the present case, the assessee's cash payments were concededly not the amount which was disallowed; they had no correlation to what could not be established, and were disallowable. Further, the judicial record would show that when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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