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TMI Blog2017 (4) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... w is fortified by the judgment in the case of Naresh Chand Agarwal vs. CIT [ 2013 (6) TMI 68 - ALLAHABAD HIGH COURT] wherein observed that no penalty u/s 271(1)(c) can be imposed with reference to the addition made on estimation basis. The assessee has not furnished inaccurate particulars of income and there are no findings of the Assessing Officer and the Ld. CIT (Appeals) that the details furnished by the assessee in his return are found to be inaccurate or erroneous or false. Accordingly, we delete the penalty in dispute made u/s. 271(1)(c) - Decided in favour of assessee - I.T.A. No. 5374/Del/2012 - - - Dated:- 24-4-2017 - SHRI H. S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER For The Assessee : Shri Sandeep Sapra, Adv. For The Revenue : Shri N.K. Bansal, Sr. DR ORDER PER H.S. SIDHU, JM This appeal is filed by the Assessee against the Order dated 28.8.2012 passed by the Ld. CIT(A)-XI, New Delhi relating to Assessment Year 2007-08 on the following grounds:- 1. That the penalty order dated 23/12/2011 as passed by the Ld. Dy. CIT thereby levying a penalty of ₹ 4,68,870/- u/s 271(1)(c) of the I.T. Act being arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting to ₹ 13,500/- were made and penalty proceedings u/s. 271(1)(c) were also initiated in the assessment order itself. 2.1 Against the order of the AO, assessee preferred an appeal before the Ld. CIT(A) who vide his impugned order dated 14.7.2010 confirmed the additions / disallowances to the extent of ₹ 13,92,958/- thereby giving the assessee a relief of ₹ 40,54,368/-. 2.2 Against the appellate order, the Assessee as well as the Department went in Appeal before the ITAT and the ITAT, Delhi vide its common order dated 31.3.2011 passed in ITA No. 4219/Del/2010 (Assessee s Appeal) and ITA No. 4518/Del/2010 (Revenue s Appeal) has upheld the order of the Ld. CIT(A) and dismissed both the appeals by holding as under:- Under the circumstances, Ld. CIT(A) observed that estimate is needed to be made while the AO had applied ₹ 59.48 rate, appellant offered ₹ 33.56 per meter. Ld. CIT(A) has proceeded to apply the rate of ₹ 37.96. In our considered opinion, in absence of direct evidences estimate is inevitable on the facts and circumstances of the case. In our considered opinion, Ld. CIT(A) has made a reasonable order, which does not need any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 26, 47 and 154 at pages 86 and 88 to prove that the AO and CIT(A) had only estimated the value of such three items. 5.1 The Ld. Counsel of the assessee further referred to assessment order passed u/s 143(3) placed at pages 30-35 of the paper book and argued that the addition of ₹ 54,47,326/- had been made by the AO on account of alleged difference in the valuation of three items of stock. 5.2 The Ld. Counsel of the assessee also referred to CIT(A) s order in quantum appeal placed at pages 127-133 of the paper book and pointed out that the observations of the CIT(A) vide para.1 at page 6 that there was discrepancy quantity-wise in the inventory and the said matter had not been refuted by the Appellant either before the AO or before the CIT(A) are factually incorrect. According to AR, the CIT(A) did not dispute the stock quantity and vide para 2.8 at page 6, the CIT(A) only estimated the value of three items @Rs.33.56 per mtr. instead ₹ 59.48 per mtr. as estimated by the AO. 5.3 He further submitted that against the Ld. CIT(A) s order, both the Assessee and Revenue went in appeal and ITAT vide order dated 31/03/2011, upheld the order of CIT(A) by dismissing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counsel argued that the penalty of ₹ 4,68,870/- under appeal is illegal and therefore deserves to be cancelled. 6. On the other hand, the Ld. DR, Sh. N.K. Bansal, did not controvert the arguments of the Ld. AR of the assessee that addition was made only on account estimation of value of three items in the stock inventory and not on account of any discrepancy in the quantity. However, the Ld. DR vehemently argued that the Assessee had failed to prove the value of the three items of stock and therefore, penalty levied on estimate made on such three items was justified and relied upon the orders of the revenue authorities. 7. In response, Ld. AR has placed reliance on written submissions filed before CIT(A) in quantum appeal copy placed at pages 40-43 and purchase invoices placed at pages 79-81 of the paper book filed to substantiate value of three items of stock shown by the Assessee and argued for cancellation of penalty under appeal. 8. We have heard both the parties and perused the records, especially the orders of the authorities below and the Chart filed by the Ld. Counsel of the assessee, we find that the Chart filed by the Ld. Counsel of the assessee shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 04/11/2011 :- We are not inclined to entertain the present appeal under Section 260A of the Income Tax Act, 1961 as the question raised is purely factual. 2. The Assessing Officer noticed that the during the survey proceedings, the assessee had surrendered an amount of ₹ 35.10 lacs for taxation as additional income for financial year 2006-07. There is no dispute about the same. The dispute pertains to value of zip fastener mentioned at serial No.26 and 47 and 154. The Assessing Officer had taken the value of the zip fasteners of ₹ 59.48 per meter The assessee's contention was that this figure was on the higher side and not substantiated by any material or evidence. After examining the factual and aspects and evidence the CIT(A) valued the zip fasteners at ₹ 37.96 per meter. The said order has been upheld by ITAT. The reasons and grounds mentioned by the two appellate authorities are not perverse. It is a reasonable view on the facts, material and evidence. The reasoning does not require interference in an appeal u/s 260A of the Income Tax Act, 1961 . 8.4 We note that the Hon ble High Court s vide its order dated 04/11/2011 was also consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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