TMI Blog2016 (8) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ng been passed beyond the period of limitation u/s 275(1)(a) of the Act. Also on merits so far as question of applying the gross profit rate of 10%, further reduced to 4% by the Appellate Tribunal, after rejecting the books of account by the AO on estimation basis is concerned, the same does not amount to concealment of income by the assessee because the assessee during the assessment proceedings put forth book results, audited balance sheets, etc. before the AO but the same has been rejected by AO by invoking the provisions contained u/s 145(2) of the Act. In case, books of account have been rejected, the AO has to assess the income on the basis of comparative study and not on the basis of guesswork and estimation. So, to our mind, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on addition of gross profit on estimated sales which does not tantamount of concealment. 2.1 That on the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in dismissing the appeal filed by the assessee against penalty order u/s 271(1)(c) of the Income Tax Act where no inaccurate particulars filed by appellant in return of income. 2.2 The Ld CIT(A) has erred in considering the judgment of Apex court CIT vs Reliance Petroproducts Pvt Ltd [2010] 322 ITR 158 (SC). 3. The appellant craves leave to add, alter, amend or modify any of the grounds of appeal before or at the time of hearing of the appeal. 2. Briefly stated the facts of this case are : on the basis of assessment order dated 30.03.199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and maximum penalty imposable in the case is computed as under:- Concealed income Rs, 7,28,194/- Tax on amount of income concealed @ 55 % Rs, 4,00,507/- Minimum penalty u/s 271 (1) (c) @ 100% ₹ 4,00,507/- Maximum penalty u/s 271 (1) (c) @ 300% Rs.12,01,521/- I, therefore, impose a penalty of ₹ 4,00,507/- being minimum penalty u/s 271 (1)(c) of the Income Tax Act of 1961. 3. Assessee carried the matter before the ld. CIT (A) who has affirmed the penalty order by dismissing the appeal. Feeling aggrieved, the assessee has come up before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealment of taxable income. However, on the other hand, ld. DR relied upon the order passed by the ld. CIT (A). 8. In the backdrop of the facts and circumstances of the case and the arguments addressed by the authorized representatives of the parties, the first question arises for determination in this case is:- as to whether penalty order passed against the assessee on the basis of the assessment order dated 30.03.1993 is barred by limitation u/s 275(1)(a) as alleged by the assessee? 9. To proceed further, we would like to reproduce the provisions contained u/s 275(1)(a) of the Act for facility of reference as under :- 275. (1) No order imposing a penalty under this Chapter shall be passed- (a) in a case where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue authorities within a period of six months from the receipt of order of Appellate Tribunal by the Commissioner. Undisputedly, in the instant case, assessment order was passed by the AO on 30.03.1993 and appeal against the said order before the CIT (A) was dismissed vide order dated 15.04.1996 but ITAT restored the appeal back to CIT (A) on 22.04.1999 and in pursuant thereto, the CIT (A) passed the order dated 29.10.2004 and appeal against the said order was disposed off by the Appellate Tribunal vide order dated 17.06.2011 which has since attained finality. 11. In the face of the fact that penalty order dated 26.11.2012 has been passed after about one year and five months from the date of passing order by the Appellate Tribunal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of 10%, further reduced to 4% by the Appellate Tribunal, after rejecting the books of account by the AO on estimation basis is concerned, the same does not amount to concealment of income by the assessee because the assessee during the assessment proceedings put forth book results, audited balance sheets, etc. before the AO but the same has been rejected by AO by invoking the provisions contained u/s 145(2) of the Act. In case, books of account have been rejected, the AO has to assess the income on the basis of comparative study and not on the basis of guesswork and estimation. So, to our mind, this cannot be concealment of income by any stretch of imagination even. 16. Secondly, disallowance of expenditure of ₹ 32,658/-, for arg ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
