TMI Blog2010 (12) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is worth to mention that the appellant has not only argued the case on the merits but also a legal argument has been raised pertaining to the applicability of Explanation-4 to Section 271(1)(c) of the I.T.Act. 3. Facts in brief as emerged from the corresponding penalty order passed u/s. 271(1)(c) of the I.T.Act, 1961 dated 30/03/2007 and the assessment order passed u/s.143(3) of the I.T. Act, 1961 dated 30/03/2004 were that the assessee-company is engaged in the business of manufacturing and sales of Zeolite powder. During the course of assessment proceedings, it was noticed by the Assessing Officer that the assessee had shown a very low yield of finished product. It was also noticed by the Assessing Officer that there was higher co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax number printed on the purchase bill was issued to some other concern. On further probing from Sales Tax Commissioner s office, it was revealed that the GST No. etc. were allotted to someone else and not to those concerns. It was concluded by the Assessing Officer that beyond doubt the assessee has inflated the purchases from the concerns which were not in existence. The addition was challenged which was finally affirmed by the ITAT Ahmedabad Bench A in assessee s own case in ITA Nos.160 1089/Ahd/2006 for Assessment Year 2001-02 vide order dated 16/10/2009, wherein vide paragraph No.7.4. it was concluded as under:- We find that the CIT(A) has rightly held on the basis of evidences that no payment was made to these parties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate Bench B Ahmedabad in the case of Maxima Systems Ltd. in ITA No.3929/Ahd/2007 for Assessment Year 1995-96 order dated 11/06/2010. On the other hand, from the side of the Revenue, Learned Departmental Representative has placed reliance on decision of Hon'ble Supreme Court in the case of Saheli Leasing and Industries reported as 324 ITR 170 (SC). 7. We have carefully perused the orders of the authorities below in respect of the merits of the case and thereupon formed a conscientious view that the purchases were conclusively held as bogus purchases by the Respected Co-ordinate Bench in assessee s own case vide an order dated 16/10/2009 referred supra. Therefore, this is a clear cut case of concealment of facts which were detect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 24,12,329/- and the net taxable income was determined at ₹ 3,34,314/-, then the difference between the NIL income as disclosed and the finally assessed income of ₹ 3,34,314/- is to be taken for the purposes of levy of penalty or the amounts which were found concealed by the assessee are the amounts to be taken into account for the computation of penalty. In other words, if the clause (a) to Explanation-4 of Sectin 271(1)(c) is not applicable, then whether in a situation where the total income inclusive of concealed income as computed by Assessing Officer get reduced due to set off of carry forward unabsorbed depreciation then the quantum of penalty is to be determined as per clause (c) to Explanation-4 to section 271(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncealed income from the assessed total income. For working out the second limb the words used in the clause is total income reduced by the amount of concealed income. This total income is one which is assessed as it has a reference with the first limbs. The two total incomes one mentioned in the first limbs and the other mentioned in the second limbs cannot be treated differently. Both are total income assessed . Therefore, in the second limbs also, we have to consider the total income as assessed for subsequently reducing there from, the concealed income. The learned DR sought to argue that this total income should be prior to adjustment of any brought forward loss or unabsorbed depreciation which in this case is ₹ 20,10,924/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the authorities below to that extent and direct the AO to levy minimum penalty on the tax to be calculated on total income assessed by the AO at ₹ 3,28,357/-. 7. During the course of hearing, three more decisions have also been pointed out; namely CIT vs. Gold Coin Health Food Pvt.Ltd. reported at [2008] (304 ITR 308(SC), CIT vs. Aditya Chemicals Ltd. Ors. reported at [2006]283 ITR 458 (Del) and of CIT vs. Sharmja Cold Storage Ice Factory Pvt.Ltd. reported at [1998]64 ITD 129 (TM)[Patna]. 8. On careful reading of all these decisions and particularly the decision of the Respected Co-ordinate Bench as cited (supra), we are of the view that the issue in hand is directly covered by the view already taken therein. In the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
