TMI Blog2018 (4) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... ISH SOOD, JM AND SHRI N.K PRADHAN, AM For The Appellant : Mr. Mukesh Choksi, A.R. For The Respondent : Shri V. Justin, D.R. ORDER PER RAVISH SOOD, JUDICIAL MEMBER: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income Tax (Appeals)-38, Mumbai, dated 14.11.2014, which in itself arises from the order passed by the A.O under Sec. 271(1)(c) of the Income-tax act, 1961 (for short Act ), dated 02.05.2013. The assessee assailing the order of the CIT(A) had raised before us the following grounds of appeal:- 1. The Learned Appellate Commissioner has erred in law and in facts in passing the order u/s 271(1)(c) of the Act. 2. The learned Appellate Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature and source of the amounts credited in its bank accounts, submitted that it was involved in the business of facilitating and providing accommodation entries and as proved during the course of the Search and seizure action conducted on 25.11.2009 the aforesaid amounts belonged to the beneficiaries to whom accommodation entries were provided by it. The assessee though initially submitted before the A.O that as the margin of profit pertaining to the transactions routed through its bank accounts to facilitate providing of accommodation entries was very negligible, therefore, the same was not considered, but however, finally offered the commission income to the tune of 0.15% of the total deposits in its bank accounts as its income. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty of ₹ 12,000/- under Sec.271(1)(c). 5. Aggrieved, the assessee assailed the order of the A.O imposing penalty under Sec. 271(1)(c) in appeal before the CIT(A). The CIT(A) after deliberating on the facts of the case by a consolidate order dated. 14.11.2014 passed in 31 appeals in the case of the assessee and its group concerns/entities, dismissed the appeal of the assessee. 6. The assessee being aggrieved with the order of the CIT(A) upholding the penalty imposed by the A.O under Sec. 271(1)(c) had carried the matter in appeal before us. The ld. A.R at the very outset taking us through the facts of case, submitted that the assessee was engaged in the business of providing accommodation entries. It was submitted by the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (for short D.R ) relied on the orders of the lower authorities. 7. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record. We have perused the orders of the coordinate bench and SMC of the Tribunal passed in the case of the assessee for A.Y. 2004-05 and A.Ys 2005-06 and 2007-08, respectively. We find that the facts and the issue involved in the case of the assessee for the year under consideration remains the same as were involved in the aforementioned years. We may herein observe that the similarity in the facts and the issue involved in the case of the assessee for the year under consideration, viz. A.Y 2003-04 and that of A.Y 2004-05 can sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had shown the income at a different percent. The addition made by the A.O and conf irmed by the FAA in quantum addition may or may not be. But, levying penalty on the basis of an estimated addition could not be held to be justified. No authority is required to be cited that penalty and assessment proceedings are separate and distinct proceedings and the quantum proceedings should no t result in automatic levy of concealment penalty. It is a case of estimation of Income by the A.O and the assessee. Here we would like to discuss two cases One of them is Aero Traders P. LTD.(322 ITR 316) In that case the assessee company had f iled its return of income for the year 1997-98 on a not ice u/s.148 of the Act, l96l declaring a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty proceeding penalty cannot be imposed. in quantum proceedings, a particular provision might be attracted for addition to the income of the assessee. But when it comes to the question of imposition of penalty, then independently of the finding arrived at in the quantum proceedings, the authority has to find conclusively that the assessee owns the concealed amount. Considering the fact that Tribunal has adopted a particular rate for estimating the Income of the assessee for the year under consideration, we hold that the FAA was no t justified in confirming the order passed by the A.O 271(1 ) ( c ) of the Act . Therefore, reversing his order, we decide the effective ground of appeal in favour of the assessee. We thus are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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