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TMI Blog2012 (10) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... . Though AO had imposed the penalty for a lump sum amount of Rs.5,00,000/-, CIT(A) modified it and directed the AO to calculate the penalty on the basis of tax ought to be evaded. No infirmity in the order of CIT(A) except regarding quantum of penalty which should be calculated on the basis of difference between figures of profits between two profits & loss accounts. Thus direction to AO to calculate penalty accordingly - partly in favour of assessee. - I.T.A. No.3191 /Del/2012 - - - Dated:- 19-10-2012 - SHRI I.C. SUDHIR, AND SHRI T.S. KAPOOR, JJ. Appellant by : Shri Rakesh K. Sehgal, C.A. Respondent by : Smt. Surjani Mohanty, Sr. DR. ORDER PER TS KAPOOR, AM: This is an appeal filed by the assessee against the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee submitted that both the returns were filed by his previous counsel and it was not aware of the revised return as revised return had been filed without any reason as well as without their consent. Therefore, it pleaded that there was no mala fide intention. The Assessing Officer after considering the reply of the assessee did not agree with the contention of assessee and imposed penalty of Rs.5 lakhs. 3. Dissatisfied with the order, the assessee filed appeal before Ld CIT(A) and submitted that the addition was made on estimate and therefore penalty should not have been imposed. Reliance was placed on the judgment of Hon'ble Supreme Court in the case of CIT v. Reliance Petro products Pvt. Ltd. The Ld CIT(A) after considering the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the penalty with reference to tax sought to be evaded instead of Rs.5 lakhs imposed by the Assessing Officer. 4. Aggrieved, the assessee filed appeal before this Tribunal. 5. At the outset, Ld AR submitted that assessment was completed u/s 144 and Ld CIT(A) had upheld the addition but had allowed deduction on account of partner s salary and assessee did not file appeal because it had got relief as partner s salary was allowed to be adjusted against profit estimated by Assessing Officer. He further argued that penalty u/s 271(1)(c) cannot be imposed where additions are made on account of estimation of income. Reliance was placed on the following judgments:- 1. CIT v. Vijay Kumar Jain 325 ITR 378. 2. CIT v. Mahendra Singh Khadla 71 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable on record. We find that the assessee did not appear before Assessing Officer for completion of assessment proceedings and Assessing Officer on the basis of gross receipts as per Form No.26 AS estimated the income of assessee on the basis of 8% of gross receipts in the light of provisions of section 44AD. Both the P L Account attached with original return and revised returns were audited by different Chartered Accountants. However, gross receipts in both the cases was same i.e. Rs.2,18,71,876/-. The decrease in profit in the revised return was due to increase in labour, wages and expenses and consequent increase of an equal amount in the figure of trade creditors. In view of non cooperation by the assessee, the Assessing Officer had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily suppressed the particulars of income and given an incorrect account of his income. The assessee did not maintain books of accounts and therefore his income was to be assessed on estimated basis only. Therefore, the assessee was liable to penalty. Similar views were held by Hon'ble Madras High Court in the case of CIT v. H. Krishnaswamy sons 219 ITR 157. The facts of that case are that assessee was doing transport business. Original assessments for assessment year 1979-80 1980-81 were completed on a total income of Rs.81,370/- and Rs.53,610/-. Subsequently there was a raid in the premises of the assessee. The assessee filed revised return for two years and admitted the suppression. The Hon'ble Court had held that cancellation of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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