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TMI Blog2015 (10) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... section 271(1)(c) - CIT(A) giving relief of 95% of penalty imposed - Held that:- Issue is covered with the decision of the ITAT, Ahmedabad Bench in assessee’s group case of M/s.Devi Durga Construction Vs. ACIT for Asstt.Years 2004-05 to 2007-08 in [2015 (10) TMI 791 - ITAT AHMEDABAD] wherein held only finding recorded by CIT(A) for confirming the penalty in this case was that Assessee was abating in tax evasion. The act of abatement in tax evasion for some other person could not be made the basis for levy of penalty u/s. 271(1)(c) on the Assessee. We further find that CIT(A) has passed a cryptic order. On these facts of the case, we are of the view that the impugned order could not be sustained. However in the interest of justice to both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as under: 1. The ld.CIT(A) has erred in confirming the assessment made by the AO u/s.153A(1)(b) r.w.s. 1243(3) of the Income Tax Act, 1961 which is illegal and bad in law and therefore, the same requires to be cancelled. 2. The ld.CIT(A) has erred in confirming the action of the AO in making additions merely on surmises and conjectures and without any basis. 3. The ld.CIT(A) has erred in confirming the addition to the extent of 5% of the total amount of bills issued on an estimate basis without any other evidences and material to support he estimation. 4. The ld.CIT(A) ought to have considered the fact that the appellant firm has received in cash only commission @1.5% of the total amount bills issued after deduction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the only issue in the grounds of the appeal of the assessee is regarding the assessment of commission income of providing accommodation bills by the assessee. He submitted that the issue is covered with the decision of the ITAT, Ahmedabad Bench in assessee s group case of M/s.Devi Durga Construction Vs. ACIT for Asstt.Years 2004-05 to 2007-08 in IT(SS)A.No.181 to 187/Ahd/2011 dated 11.7.2014, wherein the Tribunal in identical facts has partly allowed the appeal of the assessee, and has directed the AO to assess the assessee by estimating the commission income of the assessee at 2.5% of the total bill amount, as against the rate of 5% applied by the CIT(A). The learned Sr.DR has relied on the order of the AO. 5. We have considered rival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) has erred in law and on facts in giving relief of 95% of penalty imposed of ₹ 2,17,82,690/- i.e. ₹ 2,06,93,556/- 8. IT(SS)A.No.178/Ahd/2011 (Assessee s Appeal) under section 271(1)(c) of the I.T.Act. 9. The only ground of the appeal of the assessee is as under: 1. The ld.CIT(A) has erred in confirming the levy of penalty u/s.271(1)(c) of the Act @100% of the tax sought to be evaded on the concealed income determined only on estimate basis as per the appellate order dated 2.12.2010 passed in respect of quantum appeals. He sought to have deleted the penalty levied u/s.271(1)(c) of the IT Act, 1961 on the estimated income/additions/determined/made. 10. Both these appeals preferred by the Revenue and the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case and that Revenue has established that such conditions exist. We find that the only finding recorded by CIT(A) for confirming the penalty in this case was that Assessee was abating in tax evasion. The act of abatement in tax evasion for some other person could not be made the basis for levy of penalty u/s. 271(1)(c) on the Assessee. We further find that CIT(A) has passed a cryptic order. On these facts of the case, we are of the view that the impugned order could not be sustained. However in the interest of justice to both the parties, we consider that it shall be appropriate to restore the issue of penalty u/s. 271(1)(c) to the file of A.O to pass a de novo order in accordance with law after providing reasonable opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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