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2016 (8) TMI 467 - ITAT DELHIPenalty levied u/s 272A(1)(c) - period of limitation - GP rate determination - Held that:- In the face of the fact that penalty order dated 26.11.2012 has been passed after about one year and five months from the date of passing order by the Appellate Tribunal, the same is hopelessly time barred. Though date of receipt of order dated 17.06.2011passed by ITAT by the Principal Chief Commissioner / Commissioner is not available on record but factual position as to passing the penalty order after expiry of the six months from the receipt of the order of the ITAT has not been disputed by the ld. DR. So, we hereby quash the penalty order having been passed beyond the period of limitation u/s 275(1)(a) of the Act. Also on merits so far as question of applying the gross profit rate of 10%, further reduced to 4% by the Appellate Tribunal, after rejecting the books of account by the AO on estimation basis is concerned, the same does not amount to concealment of income by the assessee because the assessee during the assessment proceedings put forth book results, audited balance sheets, etc. before the AO but the same has been rejected by AO by invoking the provisions contained u/s 145(2) of the Act. In case, books of account have been rejected, the AO has to assess the income on the basis of comparative study and not on the basis of guesswork and estimation. So, to our mind, this cannot be concealment of income by any stretch of imagination even. Disallowance of expenditure for argument sake even if assumed to be wrongly claimed by the assessee, does not amount to concealment of income in any manner, because allowability of expenditure claimed by the assessee is to be examined by the AO and mere claim of assessee is not concealment. Thus penalty order affirmed by the ld. CIT (A) is not sustainable - Decided in favour of assessee
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