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2016 (8) TMI 467 - ITAT DELHI

2016 (8) TMI 467 - ITAT DELHI - TMI - Penalty levied u/s 272A(1)(c) - period of limitation - GP rate determination - Held that:- 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, the same is hopelessly time barred. Though date of receipt of order dated 17.06.2011passed by ITAT by the Principal Chief Commissioner / Commissioner is not available on record but factual position as .....

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alment 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 ev .....

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gh, Judicial Member ASSESSEE BY : Ms. Aruna Mittal, CA and Shri Ajay Wadhwa, Advocate REVENUE BY : Shri F.R. Meena, Senior DR ORDER Per Kuldip Singh, Judicial Member Appellant, M/s. Perfect Spray Pac Pvt. Ltd. (hereinafter referred to as the assessee ), by filing the present appeal sought to set aside the impugned order dated 21.01.2014 passed by the Commissioner of Income-tax (Appeals)-XVII, New Delhi, affirming the penalty order dated 26.11.2012 passed u/s 271(1)(c) of the Income-tax Act, 1961 .....

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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 .....

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king net profit at 10% which was reduced to 4% by the ITAT, it does not amount to concealment of income; and further disallowance of expenditure of ₹ 32,658/- claimed by the assessee also does not amount to concealment of income. Finding the contentions raised by assessee not tenable, AO imposed the penalty by returning the following findings :- Considering the facts of the case I hold that the assessee has concealed its taxable income and as a consequence of concealing its income, I am of .....

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ar that penalty u/s 271 (1) (c) of the Income Tax Act, 1961 is attracted in the Assessee's case. Minimum 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. As .....

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has come up with an application for admission of additional ground to the effect that :- That the order imposing penalty is bad in law and void ab initio since the same has been levied after expiry of limitation period as laid down under section 275(1)(a) of Income Tax Act, 1961. on the ground that this is a legal ground going into the roots of the case. 6. We are of the considered view that without prejudice to the merits of the case, legal ground now sought to be raised as additional ground b .....

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he entire assessment has been made by the AO on the basis of estimation by taking net profit rate at 10% which also does not amount to concealment 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 a .....

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an appeal to the Appellate Tribunal under section 253, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, 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 [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner, whichever period expires later : .....

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from the end of the financial year in which the order of the Commissioner (Appeals) is received by the [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner, whichever is later; 10. Bare perusal of the provisions contained u/s 275(1)(a) of the Act goes to prove that penalty order is required to be passed by the revenue authorities within a period of six months from the receipt of order of Appellate Tribunal by the Commissioner. Undisputedly, in the inst .....

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passed after about one year and five months from the date of passing order by the Appellate Tribunal, the same is hopelessly time barred. Though date of receipt of order dated 17.06.2011passed by ITAT by the Principal Chief Commissioner / Commissioner is not available on record but factual position as to passing the penalty order after expiry of the six months from the receipt of the order of the ITAT has not been disputed by the ld. DR. So, we hereby quash the penalty order having been passed b .....

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