TMI Blog2013 (11) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee - Unless the defect is pointed out and books of account are rejected, there is no question of estimation of any production and sales – The issue is restored for fresh decision. - ITA Nos. 2502/Del/2012 & 2079/Del/2011 - - - Dated:- 26-11-2013 - Shri G. D. Agrawal And Shri A. D. Jain,JJ. For the Appellant : Shri H. G. Malik and Shri Sanjay Malik, Advocates. For the Respondent : Shri Gunjan Prasad, CIT-DR. ORDER Per G. D. Agrawal, VP : These two appeals by the assessee are against the order passed under Section 263 of the Income-tax Act, 1961. 2. The facts of the case are that the assessee derives income from manufacturing of tyres and tubes. For the year under consideration, the assessee filed the return discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT did not properly consider the assessee's written submission and on the basis of some imagination worked out the suppression of sales of Rs. 31,70,730/-. In this regard, the learned counsel referred to pages 4 5 of the CIT's order and stated that the entire working is based upon presumption and assumption of the CIT. He also stated that in the regular books of account maintained by the assessee, no defects have been pointed out. Unless the defect is pointed out and books of account are rejected, there is no question of estimation of any production and sales. He further submitted that not an iota of evidence was found or pointed out by the learned CIT of the presumption of the suppression of sales to the extent of Rs. 31,70,730/-. He sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Assessing Officer passed a cryptic order in which he considered only one aspect i.e. cash deposit in the books of account and made the addition of Rs. 57,500/- in respect of unexplained cash deposit. However, the Assessing Officer has not at all examined the quantitative details and whether proper production has been shown on the basis of raw material consumed. He, therefore, submitted that on lack of enquiry itself, the order of the Assessing Officer is erroneous. In this regard, the matter is covered in favour of the Revenue by the decision of Gee Vee Enterprises Vs. Addl.CIT - 99 ITR 375 (Delhi). He further submitted that if the order of the Assessing Officer is held to be erroneous on the ground of inadequate enquiry but the Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT in the order under Section 263. Needless to mention that he will allow adequate opportunity of being heard to the assessee while making the assessment afresh. 6. Since we have already set aside the addition made by the Assessing Officer, the penalty based upon such addition cannot be sustained. Therefore, the penalty levied under Section 271(1)(c) by the learned CIT is cancelled for the time being with the observation that the Assessing Officer will be at liberty to reinitiate the penalty proceedings after making the assessment afresh if the facts of the case so warrant. 7. In the result, assessee's appeal in ITA No.2079/Del/2011 is partly allowed while assessee's appeal in ITA No.2502/Del/2012 is deemed to be allowed for statistic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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