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ACIT, Circle-3, Srinagar Versus M/s Star Constructions

Penalty u/s 271(1) (c ) - G.P. estimation - Held that:- The assessment was completed by applying 5% as net profit of gross receipts which was estimation basis thus in the case of estimation of profit penalty u/s 271(1) (c ) was not imposable. - Decided in favour of assessee. - I.T.A No. 148 (Asr)/2014 - Dated:- 6-5-2016 - Sh. A. D. Jain, Hon ble Judicial Member And Sh. T. S. Kapoor, Hon ble Accountant Member For the Appellant : Sh. S. S. Kanwal (DR) For the Respondent : Sh. Upendra Bhat (CA) ORD .....

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e miscellaneous application filed by the assessee for recalling the order of the Hon ble ITAT wherein the Hon ble ITAT has confirmed the assessment order of the Assessing Officer but no further information regarding filing of appeal is on record. 3. The learned DR, at the outset, heavily placed his reliance on the order of Assessing Officer. 4. The learned AR, on the other hand, submitted that penalty was imposed on the basis of addition which was made by Assessing Officer on the basis of estima .....

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(ii) CIT vs. P Rojes 90 DTR 399 (Madras HC) (ii) CIT vs. Shri Sindhuja Foods (P) Ltd. (Rajsthan High Court) In view of the above judgments it was submitted that penalty was not imposable. 5. We have heard the rival parties and have gone through the material placed on record. We find that the learned CIT(A) has deleted the penalty holding that the penalty imposed by Assessing Officer earlier in the same year had already been deleted by Hon ble ITAT in ITA No.33 (Asr)/2010 vide order dated 31st M .....

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hat a penalty order imposing penalty of 100% of tax sought to be evaded in respect of this income was already made on 30.12.2008. On appeal before the CIT(Appeals), Jammu , the then CIT(Appeal) passed order in appeal no 754/08-09 dated 16.10.2009 deleting the said penalty and the order of CIT(A), Jammu was further upheld by the Hon'ble ITAT, Amritsar vide order no. ITA 33(ASR)/2010. The AO was asked to comment vide letter dated 13.11.2013 on appellant's submission as to how the penalty w .....

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s per the proviso of section 275(l)(a), the penalty could be imposed within one year from the end of the financial year in which the order of CIT(A) in respect of relevant assessment order is received. The penalty order in this case could be imposed on or before 31.03.2010. The original penalty order as discussed above was made on 30.12.2008 i.e within the time prescribed u/s 275(1) of the Act, however the penalty order under question was made on 18.01.2013 which is barred by time. The provision .....

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, or six months from the end of the month in which the order of the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal is received by the Chief Commissioner or Commissioner, whichever period expires later: [Provided that in a case where the relevant assessment or other order is the subject-matter of an appeal to the Commissioner (Appeals) under section 246 or section 246A, and the Commissioner (Appeals) passes the order on or after the 1st day of June, 2003 disposing of such a .....

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ITA No.33(Asr)/2010 for Asst. year 2004-05, the similar penalty imposed by Assessing Officer was deleted by Hon ble ITAT. The relevant findings of the Tribunal as contained in para 11 are reproduced below. 11. After going through the impugned order dated 16-10-2009, which is supported by various decisions rendered by the Hon ble jurisdictional High Court and Hon ble Punjab and Haryana High Court, we are of the considered opinion that the penalty in dispute has been imposed on an estimated basis .....

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