TMI Blog2016 (8) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... n the unexplained cash credit of ₹ 30,000/-. We find no reason to interfere with the order of ld. CIT(A). This ground of Revenue is dismissed. - ITA No.1503/Ahd/2012 - - - Dated:- 25-7-2016 - Shri R. P. Tolani, JM, and Shri Manish Borad, AM. For The Appellant : Shri Prasoon Kabra, Sr.DR For The Respondent : None ORDER PER Manish Borad, Accountant Member . This appeal of Revenue is directed against the order of ld. CIT(A)-IV, Surat, dated 27.03.2012 passed against order u/s 154 of the IT Act, 1961 (in short the Act) on 04/02/2010 by ITO, Ward-4(2), Surat, for Asst. Year 2001-02. 2. None is appearing on behalf of the respondent since the date of first hearing of appeal i.e. 6.9.2012 and, therefore, this appeal has been heard on the basis of submissions made by ld. DR and available records in the file. 3. Grounds of appeal raised in this appeal are as under :- 1. As per the facts and circumstances of the case and in law, the Ld.CIT(A) has grossly erred in interpreting the order of the Ld. CIT(A) bearing No. CAS-III/16/2009-10 dated 10,08.2009 and directed to the A.O.to cancel the penalty of ₹ 25,78,504/- levied u/s.271(l)(c) of the IT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowance of loss of ₹ 64,89,606/-. Due to this reason assessee filed an application u/s 154 of the Act for rectification of the order giving appeal effect. Ld. Assessing Officer did not make any change in the impugned order and rejected the application of assessee u/s 154 of the Act by passing an order on 4.2.2010 u/s 154 of the Act. 7. Assessee thereafter preferred an appeal against the order u/s 154 of the Act and got succeeded and penalty u/s 271(1)(c) of the Act was sustained only on the unexplained cash credit. 8. Aggrieved, Revenue is now in appeal before the Tribunal. 9. Ld. DR supported the order of ld. Assessing Officer. 10. We have heard the contentions of ld. DR and perused the material on record. Revenue is aggrieved with the order of ld. CIT(A) passed u/s 154 of the Act giving relief to the assessee of sustained penalty only to the extent of unexplained cash credit. We observe that in the original return of income assessee declared a loss of ₹ 64,89,606/-. Thereafter due to unavailability of books of accounts and records income of assessee was estimated by applying 5% on the total turnover calculated at ₹ 3,40,274/- and also made addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any positive income. The said judgment was delivered by the Hon'ble Court on 06.02.2007. However, while admitting the SLP filed in the case of CIT Vs Raman Lal C Hathi [(2008) 217 CTR )SC) 105], on 07.01,2008, having regard to the nature of the aforesaid amendment in section 271 and to the judgment of the Court in Virtual Soft Systems Ltd.(supra), the Hon'ble Apex Court have taken the view that the point laid down by its Division Bench in their said decision needs ^ration. Further, in their later judgment delivered on 18.08.2008 in the cane of CIT Vs Gold Coin Health Pood (P) Ltd. [(2008) 218 CTR (SC) 359], the Hon'ble Supreme Court have held that the said amendment to Explanation 4 to section 27l(l)(cj WO.T darificatory and not substantive, and is hence applicable retrospectively. Thus, even during the period between 1s' April, 1976 to Ist April, 2003, the position was that the penalty was leviable even in a case where addition of concealed income reduced the returned loss. And, in such a case, the tax sought to be evaded will be the tax chargeable on the concealed income, as if it is the total income of the assessee. In view of the aforesaid legal pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not, by itself, lead to the conclusion that the assessee either concealed particulars of his income or furnished inaccurate particulars thereof Penalty u/s.27l(l)(c) of the Act is thus not leviable in cases where income is assessed on estimate basis and there is no material/evidence to show that the assessee has concealed his taxable income or furnished inaccurate particulars thereof. It is further seen that a similar g.p. addition was also made in the preceding A.Y. in the appellant's case of identical grounds, and penalty proceedings were initiated u/s.271(l)(c) in that year also. However, in the penalty order for that year no penalty was imposed by the AO in respect of a similar estimated g.p. addition made in that year even though both the said penalty orders, (i.e., for AY's 2000-01 2001-02) have been passed on the same date. Keeping in view the aforesaid facts and circumstances of the case, it is held that no penalty was eligible u/s.271(l)(c) of the Act in regard to the aforesaid ad-hoc estimated g.p. addition of Rs 3,40,274/- (as against the incorrect figure of^ 68,59,880/-adopted by the AO in the impugned penalty order) and, to this extent, the penalty levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishing of inaccurate particulars of income and that on identical facts the same A.O. in the case of the same person, i.e. the assessee, on the same date passed different orders - imposing penalty in A.Y. 2001-02 (under reference) and dropped proceedings for A.Y. 2000-01 - concluded that no penalty was leviable on adhoc estimated GP addition of ₹ 3,40,274/-. She deleted the penalty levied on the assessed business income of ₹ 3,40,274/- and further clarified that this figure had been wrongly taken as ₹ 68,59,880/- by the A.O. Further, she has categorically mentioned in para-8 as well as para-9 that the figure of concealment had been wrongly adopted by the A.O. as ₹ 68.59.880/- instead of the correct figure oft 3,40,274/-. The A.O. may not be in agreement with this finding in the order but then the correct course would have been to seek clarification from the appellate authority or make an application u/s. 154 before the appellate authority or file an appeal to the ITAT. The A.O. could not have interpreted the order to mean that the CIT(A) had confirmed the penalty on book loss and deleted the penalty only en the positive part of the addition because she has f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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