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TMI Blog2018 (1) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act, 1961. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the penalty amounting to Rs. 1,23,127/- imposed under section 271(1)(c). 2. The assessee craves her right to add, amend or alter any of the grounds on or before the hearing." 2. The assessee is proprietor of M/s Silver Inn engaged in the business of manufacturing of gold & silver jewellery as well as handicrafts items. While completing the assessment u/s 143(3) on 24th December, 2009, the Assessing Officer made in addition equivalent 25% of unverifiable purchases made from certain parties amounting to Rs. 6,64,112/-. The matter in the quantum proceedings was carried to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that the addition in question was made by the AO @ 25% of unverifiable purchases while completing the assessment u/s 143(3). There is no definite finding by the AO that the assessee has inflated the purchase to the extent of 25% but it was only estimation of the AO to make addition which was subsequently restricted by this Tribunal to 15% of unverifiable purchase. Thus even the addition in quantum proceedings attained the finality it is not based on the finding that the assessee has inflated the purchases and suppressed the income or claim of the assessee was absolutely bogus. The AO has only doubted the purchases from certain parties and made the addition only to the extent of 25% of purchases made from such parties instead of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged fact of introduction of capital is found to be not proved satisfactorily. Therefore, it is not a case of positive concealment and benefit of doubt goes in favour of the assessee. There is no dispute that trading addition was made on the basis of estimation because the results shown by the assessee was not found satisfactory by the AO. Where an estimated addition was concealment of particulars of income or furnishing inaccurate particulars thereof on the part of the assessee to the extent of amount in difference shown by the assessee and estimated by the department depends upon the facts and circumstances of the case. .............. Under these circumstances when in the present case there was no positive evidence beyond doubt regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the present case, we are of the view that the ld. CIT (A) was justified in deleting the penalty in absence of positive evidence with the department that there was concealment of particulars of income or furnishing inaccurate particulars thereof on the part of the assessee towards the addition in question. The first appellate order on the issue is thus upheld." 8. The above finding of the Tribunal makes it clear that additions made by the Assessing Officer were based on estimation only. A fact or allegation based on estimation cannot be said to be correct only, it can be incorrect also. Therefore, in the facts and circumstances of the case, penalty was wrongly levied by the Assessing Officer. The basis for levying penalty in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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