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TMI Blog2012 (9) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the assessing authorities which was adjudicated upon by the Tribunal, which assessee has submitted as mentioned above. In the light of the same, penalty levied u/s. 271(1)(c) on the part estimation sustained by the Tribunal is cancelled – Decided in favor of assessee - ITA No.297/CTK/2012 - - - Dated:- 29-6-2012 - Shri K.K. Gupta, and Shri K.S.S. Prasad Rao, JJ. For the appellant: Shri J.M. Pattnaik, AR For the respondent: Shri S.C. Mohanty, DR ORDER Shri K.K.Gupta, AM : This appeal is on the solitary issue levying penalty u/s.271(1)(c) of the I.T.Act,1961. 2. The brief facts as have been brought on record and as submitted by the learned Counsel for the assessee as part of his argument are that the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vied penalty of Rs.1,16,000 under that Section, which in appeal has been confirmed by the learned CIT(A) and hence, the assessee is in the present appeal before the Tribunal. 4. The learned Counsel for the assessee submitted that penalty cannot imposed as the addition made which is sustained by the ITAT at Rs.4,37,432 which is only on estimation. He also pointed out that while computing the tax on estimated total income in view of the order of the ld. ITAT at Rs.4,37,732.00 has determined the tax payable at Rs.1,02,540.00 whereas in the penalty order, the said assessing officer has taken it as Rs.1,16,000.00, thereby the assessing officer is in confusion while imposing penalty, which ought to be set aside. He further contended that the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, i.e. Rs.8,50,000 for preceding eight years including current year which has again fortified by the order of CIT(A) while partly allowing the appeal stating therein the said income is also on estimate basis by allowing further Rs.1,05,000 and similarly, the I.T.A.T. has sustained the addition of Rs.4,37,732 basing on the estimation of the Assessing officer while passing the order of assessment on estimate basis. As returned income and assessed income both being on estimate basis, penalty u/s.271(1)(c) is not attracted. Further, he submitted that the Assessing Officer has not recorded his satisfaction as required under the I.T.Act to the effect that the assessee has concealed income or furnished inaccurate particulars thereof, levy of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A) confirming the levy of penalty u/s.271(1)(c) insofar as the learned CIT(A) has relied on the decisions in the case of Chandrakanta (MP) 205 ITR 607, Laxmi Industries (All) 146 ITR 492, Krishna Swamy Sons (Mad) 299 ITR 157 and Chandravilas Hotel (Guj) 291 ITR 202. 6. We have heard the rival contentions of the parties and perused the material available on record. Having heard the rival parties, we find that the quantum addition has been settled by the Tribunal and the residual amount which was petitioned before the Tribunal by way of Misc. Application which fate is unknown was only a matter of abundant precaution submitted by the assessee insofar as the residual balance of estimation from investment of the total share c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral income is not taxable. The assessee has not concealed income which is exempt. Estimation cannot result in levy of penalty straight way in a mechanical manner. The case laws relied upon by the learned CIT(A) are covered by Explanation-I to Section 271(1)(c) which leans in favour of the assessee. The assessee had neither concealed any income nor furnished any inaccurate particulars. It was a denial of the assessing authorities which was adjudicated upon by the Tribunal, which the learned Counsel for the assessee has submitted as mentioned above. In the light of the same, we have no hesitation to cancel the penalty levied u/s. 271(1)(c) on the part estimation sustained by the Tribunal. In view of the impugned penalty of Rs.1,16,000 levie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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