TMI Blog2021 (4) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... ther case laws relied by ld. AR for the assessee. No contrary facts or law is brought to our notice. In the result, Ground No.1 of appeal is allowed. - I.T.A No’s.293 & 294/AHD/2005, I.T.A No’s.2141 & 2142/AHD/2013 - - - Dated:- 13-4-2021 - Shri Pawan Singh, Hon'ble Judicial Member And Dr. Arjun Lal Saini, Hon'ble Accountant Member For the Assessee : Shri Manish Shah Advocate For the Revenue : Smt. Usha Shrote Sr. DR ORDER PER PAWAN SINGH, JUDICIAL MEMEBER: 1. These four appeals by assessee, out of which first two appeals (ITA (s) No. 294 294/AHD/2005 are directed against the common order of ld. Commissioner of Income Tax (Appeals)-1, Surat hereinafter referred as ld. CIT(A) dated 08.12.2004, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d income is loss. Since, the assessee was granted full relief for directing to delete the penalty; therefore ground No.1 was rendered academic. The revenue challenged the order of Tribunal in appeal before the Hon'ble Gujarat High Court, where the order of the Tribunal dated 01.04.2005 was upheld. However, on further appeal by the Revenue before the Hon'ble Supreme Court, the order of the Tribunal was reversed vide order dated 04.09.2012 in Civil Appeal No. 577 of 2007 others. On receipt of the order of Hon ble Apex Court the assessing officer while giving effect to the order of Apex Court restored/ revived the order of penalty dated 21.09.2004, vide his order dated 05.12.2012. The assessee challenged the order dated 05.12.2012 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years and the order passed by the ld.CIT(A). The ld. AR for the assessee furnished the copy of all these desired orders. The ld. DR for the revenue was also directed to cross check the copies of those orders with the copies of official orders and to place on record the certified copies of all those orders i.e. assessment order for A.Y. 1988-89 and penalty order and order passed by the ld.CIT(A) dated 08.12.2004. On the direction of Bench, the Ld. Sr. DR for the revenue furnished the attested copies of all desired order along with grounds of appeal raised by the assessee in ITA(s) No. 293 294/AHD/2005. In view of the aforesaid back ground, the duplicate file was reconstituted and the cases were fixed for hearing afresh on ground No.1 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To buttress of his submission, the Ld.AR of the assessee relied upon the following decisions; Manish Dhirajlal Mehta Vs ACIT in Tax Appeal No.461 464 of 2000 and 833 836 of 2005 dated 05.02.2014 (Gujarat High Court); Vijay Proteins Ltd., Vs CIT (Income Tax Reference No.139 of 1996), (Gujarat High Court); Awadhesh Bansiraj Pandey Vs ITO (ITA No.4784/ Mum/2018) Mumbai Tribunal and DCIT Vs Anil J Kothari ( 2048/Ahd/2010), Surat Tribunal. 9. On the other hand, the Ld. Sr.DR for the Revenue submits that he strongly relied on the order of Assessing Officer (AO) and Ld. CIT(A). In alternative submissions the ld. SR DR for the revenue submits that the assessing officer rejected the books of accounts of the assessee and mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report of the auditors in form No.3CD. Therefore, provisions of section 145(1) are applicable and the g.p. is required to be estimated. I, therefore, worked out at ₹ 29,16,850/- as against this g.p. shown was ₹ 10,29,291/-. The difference of ₹ 18,87,559/- is therefore, added in the total income of the assessee for low g.p. 12. On second appeal before the Tribunal in ITA No.186/Ahd/1998 dated 08.03.2004 the additions restricted the addition @ 5% of Gross Profit. Considering the fact that addition in the assessment order, on the basis of which the penalty was levied, is purely an estimated addition. It is settled position in law that no penalty under section 271(1)(c) can be levied on additions made on estimation. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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