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TMI Blog2016 (8) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... ng disposed of by this common order for the sake of convenience. 2. In all these appeals the assessee has raised the common ground of appeal that the Ld. CIT(A) has erred in law and in fact in confirming the order passed by the A.O u/s 271(1)(c) of the Income Tax Act, 1961(in short 'the Act'). Since, the only issue raised by the assessee in all the six appeals is that the Ld. CIT(A) has erred in confirming the penalty imposed by the AO u/s 271(1)(c) of the Act, we are discussing the facts of the appeal pertaining to A.Y. 2004-05 as the lead case. 3. Brief facts of the case are that the assessee is one of the concerns, floated and run by Mukesh Choksi. Search and seizure operations u/s 132 of the Act were conducted on 25/11/2009 in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict the estimate @ 0.15% of the turnover. 5. Accordingly, penalty proceedings were initiated against the assessee u/s 271(1)(c) of the Act and after hearing the assessee, the AO imposed penalty of Rs. 22,43,000/-. The assessee challenged the impugned penalty order before the Ld. CIT(A). The Ld. CIT(A) confirmed the penalty imposed by the A.O u/s 271(1)(c) of the Act. The assessee has challenged the impugned order passed by the Ld CIT(A). 6. Before us, the Ld. Counsel for the assessee submitted that the facts and circumstances of the assessee's case is identical to the facts and circumstances of the case of M/s Mihir Agencies Pvt. Ltd. and the case of Mr. Mukesh Choksi. That in the case of M/s Mihir Agencies Pvt. Ltd.(ITA No. 695/Mum/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -AY-2004-05 and other six appeals dt.6.1.16). The undisputed fact is that there is difference of opinion as to how much income should be estimated for the hawala entries-the AO estimated at a particular percentage, whereas the assessee had shown the income at a different percent. The addition made by the AO and confirmed by the FAA in quantum addition may or may not be. But, levying penalty on the basis of an estimated addition could not be held to be justified. No authority is required to be cited that penalty and assessment proceedings are separate and distinct proceedings and the quantum proceedings should not result in automatic levy of concealment penalty. It is a case of estimation of income by the AO and the assessee. Here we woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Mills (265 ITR 25)the Hon'ble Calcutta High Court has held as under: "When two views are possible and when no clear and definite inference can be drawn, in a penalty proceeding, penalty cannot be imposed.......In quantum proceedings, a particular provision might be attracted for addition to the income of the assessee. But when it comes to the question of imposition of penalty, then independent of the finding arrived at in the quantum proceedings, the authority has to find conclusively that the assessee owns the concealed amount." Considering the fact that Tribunal has adopted a particular rate for estimating the income of the assessee for the year under consideration, we hold that the FAA was not justified in confirming the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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