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TMI Blog2012 (7) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... e and at the assessment stage, therefore, merely on estimate of income, penalty is not leviable – In favor of assessee - ITA No. 80/Agra/2011 - - - Dated:- 22-6-2012 - SHRI BHAVNESH SAINI, AND SHRI A.L. GEHLOT, JJ. Appellant by : Shri Pankaj Gargh, Advocate Respondent by : Shri R.K. Jain, Jr. D.R. ORDER Per Bhavnesh Saini, J.M.: This appeal by the assessee is directed against the order of ld. CIT(A), Ghaziabad dated 06.01.2011 for the assessment year 1997-98, challenging the levy of penalty u/s. 271(1)(c) of the IT Act. 2. Briefly, the facts of the case are that the assessee deals in sale of country liquor. The AO decided the issue of determination of profits from sale of country liquor in the absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , refund was due to the assessee. The assessee has, therefore, not concealed the particulars of income nor filed inaccurate particulars of income. The ld. CIT(A), however, did not accept the contention of the assessee and confirmed the penalty and dismissed the appeal of the assessee on merits, but as regards the quantum of penalty, the contention of the assessee was accepted that penalty is leviable on the revised amount of concealed income. Accordingly, the appeal of the assessee was partly allowed. 3. The ld. counsel for the assessee reiterated the submissions made before the authorities below and submitted that the assessee disclosed all the particulars of income in the return of income and ultimately income is estimated by the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the trading account by the AO, it did not necessarily follow that the assessee had concealed its income. Cancellation of penalty was held as valid. 4. On the other hand, the ld. DR relied upon the orders of the authorities below and submitted that when part of the quantum addition has been confirmed by the Tribunal, it is a fit case for levy of penalty. 5. We have considered the rival submissions and perused the findings of authorities below. It is not in dispute that the assessee deals in sale of country liquor. The AO determined the profit from sale of country liquor in the absence of sale bills. The assessee submitted before the AO that all expenses except freight in the trading account are paid to Excise Department and are v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or filing inaccurate particulars of income. The ld. counsel for the assessee relied upon the decision in the case of Arjun Prasad Ajeet Kumar (supra), which is a case of country liquor and sale was estimated by the AO at 2 times of license fees and net profit rate of 5% was applied for computing the income. The ld. CIT(A) cancelled the penalty, which was confirmed by the Tribunal. Therefore, on such facts, the departmental appeal was dismissed. This decision directly applies to the case of assessee and other decisions cited by the ld. counsel for the assessee also support the case of the assessee for cancellation of penalty. Considering the totality of facts and circumstances and that the assessee disclosed all particulars in the return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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