TMI Blog2008 (2) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... he court was delivered by Satish Kumar Mittal J.— This order shall dispose of Income-tax Appeals Nos. 470 and 472 of 2007, filed by the Revenue under section 260A of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), which are arising from the common order dated March 19, 2007, passed by the Income-tax Appellate Tribunal, Chandigarh, Bench "B", Chandigarh (hereinafter referred to as "the ITAT"), passed in I. T. As. Nos. 234 and 235/Chd/2006, in the case of the assessee for the assessment years 1992-93 and 1993-94, respectively. In both these appeals, the following substantial question of law has been raised for consideration of this court : "Whether, on the facts and in the circumstances of the case, the Tribunal was righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector of the company, the Assessing Officer arrived at a conclusion that the books of account of the assessee were not reliable and did not reflect its true income. Accordingly, the Assessing Officer rejected the accounts of the assessee and concluded that the assessee had made unaccounted sales. While completing the assessment, the Assessing Officer, in order to arrive at the quantum of such unaccounted sales, extrapolated the average sale price in 4 invoices to 53 invoices and proceeded to make an addition of Rs. 66,16,865. The said order passed by the Assessing Officer was challenged by the assessee in appeal before the Commissioner of Income-tax (Appeals), who endorsed the conclusion that the assessee had made unaccounted sales and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and there was no evidence of any actual funds being received by the assessee in respect of those sales, came to the conclusion that the assessee had unaccounted sale amounting to Rs. 15,50,306 and on this income, the assessee evaded a tax of Rs. 7,84,170. Accordingly, the penalty equivalent to the tax evaded was levied. The assessee filed an appeal against the said order before the Commissioner of Income-tax (Appeals), which was dismissed. 5. Feeling aggrieved against the said order, the assessee filed an appeal before the Tribunal, which was allowed and the penalty levied by the Assessing Officer and confirmed by the Commissioner of Income-tax (Appeals) was deleted, while observing as under : "In the present case, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in identical. 9.1 As regards to the issue relating to making the addition is concerned, no one will disagree that the fair and reasonable estimate can be made when the books are not showing true picture. However, for levying the penalty, there should be conclusive evidence that the assessee had concealed the particulars of income or furnished inaccurate particulars of income. In the present case, the Assessing Officer made the addition by estimating the sales outside the books of account, the estimate was made only on the basis that in one 'invoice book' original copies of the invoices in respect of four invoices were not available. However, no evidence was brought on record that the assessee vide those invoices made the sales outside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1)(c) of the Act are not attracted to cases where the income of an assessee is assessed on estimate basis and additions are made therein. It was held that when the addition had been made on the basis of estimate and not on account of any concrete evidence of concealment, then the penalty was not leviable. The similar view was also taken by this court in CIT v. Dhillon Rice Mills [2002] 256 ITR 447, where the addition was made by the Assessing Officer by estimating the yield of super phak as well as of chhilka and also the price of chhilka, that addition was reduced by the Commissioner of Income-tax (Appeals). However, the penalty levied by the Assessing Officer was deleted by the Commissioner of Income-tax (Appeals). The order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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