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TMI Blog2018 (2) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose - Held that:- The factum of the destruction of evidence in fire is not rebutted by the revenue by placing any contrary material on record. We, therefore, under the facts of the present case hold that the claim of the assessee was bona fide and direct the assessing officer to delete the penalty. - Assessee appeal allowed. - ITA No. 4792/Del./2010 - - - Dated:- 21-2-2018 - SH. G. D. AGARWAL, PRESIDENT AND SH. KUL BHARAT, JUDICIAL MEMBER Appellant by : Sh. Sumant Chadha, CA Respondent by : Sh. Kaushlendra Tiwari, Sr. DR ORDER Per Kulbharat, J. M. This appeal filed by the assessee is directed against the order of Commissioner of Income Tax (Appeals) XII, New Delhi dated 31.08.2010 pertaining to assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his, the assessee is in appeal before this Tribunal. 4. Ground no. 1 is against sustaining the penalty on the disallowance of expenditure amounting ₹ 43,24,615/- on estimate basis. Ld. Counsel for the assessee submitted that the addition on disallowance of expenditure is sustained purely on the estimation basis. He submitted that the Hon ble Delhi High Court in the case of Commissioner of Income Tax vs. Nokia India Pvt. Ltd. (2012) 25 taxmann.com 430 (Delhi) held that the penalty on estimation basis cannot be sustained. Ld. Counsel made reliance on various decisions by the Tribunal to buttress his arguments that the penalty ought not to have been sustained. Ld. Counsel reiterated the submissions as made in the written submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r words, the Assessing Officer has allowed 75 per cent, of the claim and disallowed only 25 per cent, thereof. The Assessing Officer has disallowed 25 pet cent, of the claim on the ground that the old model could easily be sold in the market to the customers since the customers of this line also purchased old model even after launching new model in the market. This makes it clear that the assessee's claim has not been fully rejected. It is only on estimate that the Assessing Officer has disallowed 25 per cent. of the total claim. The Assessing Officer has not given any such finding that the assessee s claim was otherwise a false claim. The addition made by the Assessing Officer could at best be considered due in difference of opinion be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y abroad was for the business purpose. The claim of the assessee was bona fide. Ld. AO has not brought on record any adverse material against the assessed. On the contrary, ld. DR opposed the submissions and supported the orders of the authorities below. 8. We have heard the rival contention perused the material available on record, the factum of the destruction of evidence in fire is not rebutted by the revenue by placing any contrary material on record. We, therefore, under the facts of the present case hold that the claim of the assessee was bona fide and direct the assessing officer to delete the penalty. 9. In the result, the appeal of the assessee is allowed. ( Order Pronounced in the Open Court on 21/02/2018 ) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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