TMI Blog2012 (6) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... Surat, dated 30.12.2009. 2. The assessee has raised following effective ground: The ld. CIT(A) has erred on the facts of the case in upholding the levy of penalty u/s 271(1) of the Act. 3. The brief facts of the case are that the assessment u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) was framed wherein the Assessing Officer made various disallowances including the unexplained purchases and penalty proceedings u/s 271(1)(c) of the Act was also initiated. Against disallowance the assessee carried the matter before ld. CIT(A) who after considering the submissions of the assessee partly allowed its appeal. Ld. CIT(A), while partly allowing the appeal, deleted the additions made on account of disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation vs. ITO, penalty was directed to be deleted. On the contrary, Ld. Departmental Representative strongly supported the orders of the authorities below. He submitted that the assessee failed to substantiate the claim of purchases. He submitted that Ld. CIT(A) has rightly applied the ratio of decision in the case of C.I.T. (Addl.) vs. Smt. Chandrakanta reported in 205 ITR 607 (M.P.). 5. We have heard the rival submissions, perused the material available on record and the judgments cited by the parties. We find that the Hon ble Coordinate Bench of this Tribunal, in the identical facts and circumstances, in the case of Yogeshwar Corporation vs. the ITO in ITA No.2836/Ahd/2007 has held as under:- We have heard the rival submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration to the facts and submissions made by the parties. The Hon ble Co-ordinate Bench in the identical facts in ITA No.2836/Ahd/2007 has followed the view of the Tribunal in the case of Lalit Thakar (HUF) Vs. ITO Ward 3(4), Ahmedabad in ITA No.608/AHD/2006 dated 16.05.2006 where the facts were that the Assessing Officer estimated and determined the income of the assessee and a penalty was levied. However, Ld. CIT(A) in the case in hand relied on the judgment of Hon ble High Court of Madhya Pradesh in the case of C.I.T. (Addl.) vs. Smt. Chandrakanta reported in 205 ITR 607 (M.P.) in that case issue before the Hon ble High Court of Madhya Pradesh was whether the Tribunal was justified in canceling the penalty on the ground that income was de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn was an estimate. Under these facts, it was held by Hon ble M.P. High Court that it is not acceptable that since the income of the assessee was assessed on estimate basis, penalty is not leviable. In the present case, the assessee is maintaining books and without pointing out any specific defect in books and making addition on that basis, addition is made by estimating the income. Therefore, facts are different and hence, this judgment is not applicable with present case. 7. In this view of the matter, respectfully following the decision of Hon ble Co-ordinate Bench in ITA No.2836/Ahd/2007, the present appeal of the assessee is allowed and the Assessing Officer is directed to delete the penalty, as levied by him. 8. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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