9911796707
TMI Blog2023 (4) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2002-03 on the grounds inter-alia that :- "1. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the order passed by the Assessing Officer u/s 271(1)(C) of the Act. 2. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the order of Assessing Officer without complying with the principles of natural justice. 3. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming penalty u/s 271(1)(C) of the Act at Rs. 2,50,000/- 4. The appellant craves leave to add to, alter, amend and / or delete in all the foregoing grounds of appeal." 2. Briefly stated facts necessary for consideration and adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission income earned by the assessee for providing bogus entries to the different persons @ 0.15%. It is also not in dispute that commission income estimated by the AO as well as the Ld. CIT (A) at 2% was further reduced by the Tribunal to 0.15%. 7. In the backdrop of the aforesaid facts and circumstances of the case the order passed by the lower revenue authorities and arguments addressed by the Ld. Authorized Representatives of the parties to the appeal, the sole question arises for determination in this case is:- "As to whether the assessee has concealed particulars of income or has furnished inaccurate particulars of such income during assessment proceedings?" 8. Ld. AR for the assessee challenging the impugned order contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Hon'ble Bombay High Court is as under: "180. One course of before us is curing a defect in the notice by referring to the assessment order, which may or not contain reason for the penalty proceedings. The other course of action is the prevention of defect in the notice - and that 7. Sailesh Mehta v. CIT (A) ITA No. 2445, 2439, 2444 &2443/Mum/2021 prevention takes just a tick mark. Prudence demands prevention is better than cure. Answers: Question No. 1: If the assessment order clearly records satisfaction for imposing penalty on one or the other, or both grounds mentioned in Sec. 271(1)(c), docs a mere defect in the notice - not striking off the irrelevant matter vitiate the penalty proceedings? 181. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory notice. 13. Furthermore, undisputedly entire addition in this case was made/confirmed by the AO as well as the Ld. CIT (A) on the basis of estimation and guess work on the alleged bogus entry provided by the assessee during the year under consideration initially @ 100% by the AO, which was reduced by the Ld. CIT (A) to 2% of the turnover, which was further reduced by the Tribunal to 0.15% of total bogus entries provided. 14. In the backdrop of the aforesaid facts and circumstances of the case, we are of the considered view that when the entire addition has been made on the basis of estimation, penalty levied by the AO and sustained by the Ld. CIT (A) is not sustainable. So when the basis for initiation of penalty proceedings have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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