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TMI Blog2017 (6) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... ghly excessive and liable to be reduced substantially. 4. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies itself liable to be charged to interest u/s.234B and 234D of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled. 5. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of; the institution fees as part of the costs. 3. The assessee is a PWD Contractor filed his return of income on 30.09.2009 admitting total income of Rs. 17,40,960. The Assessing Officer in the course of scrutiny assessment noted that the assessee has declared net profit @ 5% on the gross receipt of Rs. 3,58,15,566. However the bank account of the assessee has reflected the total receipt of Rs. 1.22 Crores therefore the Assessing Officer asked the assessee to explain the discrepancy in the total receipt as declared by the assessee in the return of income at Rs. 3.58 Crores and receipts shown at ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer shall not initiate penalty proceedings under Section 271(1)(c) of the Act. He has further contended that the assessee never concealed income even though there were some mistakes in making the entries in accounts. The Assessing Officer while completing the assessment had not found any concealment of income by the assessee in the return of income filed. The assessee was under Bona Fide belief that the penalty proceedings initiated by the Assessing Officer will be dropped as the assessee had not concealed any income and also for the reason that the assessee had co-operated in the matter of completion of assessment and paid the taxes. However the Assessing Officer initiated the penalty and levied the penalty under Section 271(1)(c) of the Act. Therefore the consent given by the assessee for estimation of income @ 12.5% cannot be applied as an estoppel against the assessee to challenge the assessment order. In support of his contention, he has relied upon the decision of the Hon'ble jurisdictional High Court in the case of Bhandari Metals & Alloys (P) Ltd. Vs. State of Karnataka reported in 136 STC 292 and submitted that the Hon'ble High Court has held that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er bank accounts of the assessee - one in Dena Bank, Shimoga and other in State Bank of Mysore, Bhadravati. It is pertinent to note that even after considering the receipts reported in all the three bank accounts of the assessee, the gross receipts as declared by the assessee in the original return of income was found to be correct. Therefore the only discrepancy was that two bank account receipts were not declared in audit report however, the receipts in those bank accounts were duly declared by the assessee the return of income. The Assessing Officer accepted the gross receipts declared by the assessee except the relevant vouchers and books of accounts were not produced by the assessee being lost and an FIR registered with the Police in this respect was produced by the assessee before the Assessing Officer. The Assessing Officer was not satisfied with the income declared by the assessee at 5% of the turnover and therefore in response the assessee filed a letter dt.7.12.2011 the relevant portion of which has been reproduced by the Assessing Officer at pages 2 & 3 as under : 7. It is clear that the assessee agreed for adhoc estimation of income @ 12.5% of gross receipts of Rs. 3,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on the ground that the assessment was framed on the consented addition. The Hon'ble jurisdictional High Court in the case of Bandari Metal & Alloys Vs. State of Karnataka (supra) has held in paras 12 to 14 as under : " 12. The appellant does not dispute the fact that it had voluntarily filed a return offering the value of non-ferrous metal scrap brought by it into the local area to entry tax or that it had paid the entry tax on the said value or that the assessing authority had accepted the said return and passed the assessment orders. But the question is whether the said action on the part of the appellant bars the appellant from challenging the order of assessment in appeal when once it realises that the goods in question were exempt from tax. 13. The question is covered by the decision of a Division Bench of this Court in NARASOPALLI OIL MILLS v. STATE OF MYSORE, 32(1973) STC 599 - 1973 (2) Mys U. 367 where an identical question was considered. The Division Bench held: "The petitioner cannot ascribe any error in the order of the Commercial Tax Officer since his own return was accepted by the assessing authority and there was no dispute that the sales were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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