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TMI Blog2017 (2) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf of the assessee. We noticed that this was the second occasion that the assessee either did not appear on the dates fixed for hearing or sought adjournment. The assessee did not appear successively for the last two dates when the case was fixed for hearing nor any request was received for adjournment. From the conduct of the assessee we are satisfied that the assessee is not interested in pursuing its appeal. We accordingly, decided to proceed ex parte against the appellant/assessee on the basis of material on record after hearing the departmental representative (DR). 3. Brief facts of the case are that, in this case AO completed the assessment u/s 143(3) r.w.s. 147 of the Act, assessing the total income at Rs. 3,62,71,210/-, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved, the assessee is in appeal before the tribunal on the following effective grounds of appeal:- "1. On the facts and circumstances of the case the Hon'ble Commissioner of Income Tax (Appeals)-16, was totally arbitrary and unjustified in levying the penalty u/s. 271(1)(c) of the Income Tax Act, 1961. 2. On the facts and circumstances of the case the addition were made simply on the basis of estimation of gross profit based on average of last four years." 5. We have heard the Ld. departmental representative and also perused the material on record. We notice that in the light of the observations of the coordinate Bench of ITAT in quantum appeal order, the Ld. CIT(A) has held that no penalty is leviable on addition u/s 2(24)(x) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could not file any reconciliation towards the figure of purchase and sales shown in the P&L Account found at the time of survey and P&L account filed at the time of return. He, therefore, added a sum of Rs. 71,17,808/- as declared by the director as additional income at the time of survey. CIT(A) had taken a view that only the net profit on sales found excess at the time of survey could be added as there was no material to show that the corresponding investment in the purchases was unaccounted. He has thus confirmed the addition of Rs. 2,84,712/- being 4% of Rs. 71,17,808/-. On careful consideration of all aspects of the matter, we are unable to sustain the order of CIT(A). Once, certain sales were found to be unaccounted in the P&L Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is required to explain the steep fall in GP rate with supporting material and thereafter a view has to be taken about addition if any to be made on account of GP rate. Since this aspect has not been examined by the lower authorities and comparative statement was also not available before them, we consider it appropriate to set aside the order of CIT(A) and restore the matter back to him for passing a fresh order after necessary examination in the light of observations made above, if required, by remanding the mater back to AO and after allowing opportunity of hearing to the assessee." 6. In the light of order of the ITAT aforesaid, the Ld. CIT(A) passed the order giving effect to the quantum appeal order holding as under:- "The ITAT h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of figures furnished by the appellant itself, the average GP rate of AYs 2005-06, 2007-08 and 2008-09 works out to 30.37%. The appellant has declared turnover for AY 2006-07 at Rs. 15,55,40,281/- on which applying the average GP rate as worked out, the GP comes to Rs. 4,72,37,583/-. The appellant has declared GP of Rs. 4,45,91,628/-. The difference in two, of Rs. 26,45,955/- is directed to be added to the appellant's income as additional income understated by the appellant." 7. So we notice that the impugned order has been passed by the Ld. CIT(A) on the basis of order passed by the Ld. CIT(A) giving effect to the quantum appeal. As per the observations of the this Tribunal made in quantum appeal order, Ld.CIT(A) has calculated the unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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