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TMI Blog2020 (9) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... 974/JP/2018 - - - Dated:- 14-9-2020 - SHRI N. K. SAINI, V. P. And SHRI SANDEEP GOSAIN, JM Assessee by : Shri S.L. Poddar, Advocate Revenue by : Ms. Chanchal Meena , Addl. CIT- DR ORDER PER BENCH These five appeals have been filed by the assessee against common order of ld.CIT (A)- 4, Jaipur dated 10.07.2018 for the Assessment Years 2004-05, 2005-06, 2007-08, 2008-09 2009-10 passed under 271(1)(c ) of the Income Tax Act, 1961 on the grounds mentioned hereinbelow. ITA No. 970/JP/2018 A.Y. 2004-05 1. Under the facts and circumstances of the case and in law the order passed by the AO u/s 271(1)( c) of the I.T. Act, 1961 without striking off the irrelevant portion of the printed show cause notice dated 26-12-2011 viz. furnished inaccurate particulars of income or concealed particulars of such income is bad in law. 2. Under the facts and circumstances of the case and in law the order passed by the AO u/s 271(1)( c) of the I.T. Act, 1961 is against the principles of judicial consistency and therefore, bad in law. 3. That the order passed by the AO u/s 271(1)( c) of the I.T. Act, 1961 is void ab initio deserves to be quashe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without striking off the irrelevant portion of the printed show cause notice dated 26-12-2011 viz. furnished inaccurate particulars of income or concealed particulars of such income is bade in law. 2. Under the facts and circumstances of the case and in law the order passed by the AO u/s 271(1)( c) of the I.T. Act, 1961 is against the principles of judicial consistency and therefore, bad in law. 3. That the order passed by the AO u/s 271(1)( c) of the I.T. Act, 1961 is void ab initio deserves to be quashed as no satisfaction was recorded with reference to concealment of income or furnishing inaccurate particulars of income. 4. In the facts and circumstances of the case the AO has erred in imposing the penalty of ₹ 50,000/- u/s 271(1)(c ) of the I.T. Act, 1961 ITA No. 974/JP/2018 A.Y. 2009-10 1. Under the facts and circumstances of the case and in law the order passed by the AO u/s 271(1)( c) of the I.T. Act, 1961 without striking off the irrelevant portion of the printed show cause notice dated 26-12-2011 viz. furnished inaccurate particulars of income or concealed particulars of such income is bade in law. 2. Under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has preferred an appeal before us on the ground mentioned hereinabove. 4.6 During the course of hearing, the ld.AR of the reiterated the same arguments as raised by him before the ld. CIT(A) and he also relied on the following written submission submitted before us. Ground no. 4 : - ASSESSMENT YEAR - 2004-05 In the facts and circumstances of the case the Learned Assessing Officer has erred in imposing the penalty of ₹ 67,000/- u/s 271(1)(c) of the Income Tax Act, 1961. ASSESSMENT YEAR - 2005-06 In the facts and circumstances of the case the Learned Assessing Officer has erred in imposing the penalty of ₹ 67,000/- u/s 271(1)(c) of the Income Tax Act, 1961. ASSESSMENT YEAR - 2007-08 In the facts and circumstances of the case the Learned Assessing Officer has erred in imposing the penalty of ₹ 46,000/- u/s 271(1)(c) of the Income Tax Act, 1961. ASSESSMENT YEAR - 2008-09 In the facts and circumstances of the case the Learned Assessing Officer has erred in imposing the penalty of ₹ 50,000/- u/s 271(1)(c) of the Income Tax Act, 1961. ASSESSMENT YEAR - 2009-10 In the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purely on estimate basis. The following cases are quoted for support (i) Gulraj Vaswani Vs. ACIT, (!TSSA No. 21/JP/06) in Tax World VoI-XXXIX page-35 held that Before Tribunal it has been submitted that at every level there has been an estimation varying as per difference of opinion from authority to authority and hence penalty cannot be levied on the estimated addition - Assessee has also submitted that no satisfaction about concealment of income has been recorded by the Assessing Officer during the course of assessment proceedings - Tribunal have considering these facts deleted the penalty - (ii) Smt. Bitoli Devi Vs. ACIT(2007), 110 TTJ (Luck) 735 (Unless any positive concealment is found no penalty is leviable on basis of addition made on estimate) (iii) Enfield Industries Ltd. Vs. DCIT, (2007) 13 SOT 28 (URO)/107 ITD 1 (Kol.) (Onus would lie heavily with Department to prove concealment for purpose of imposing penalty under section 158 BFA(2)) (iv) CIT V. P.H.I. Seeds India Ltd. 159 Taxman 9 (Delhi):- The act does envisage or explicitly provide that in every case where return is not accepted as correct and assessment is framed at a higher income than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculars of income or had concealed the income. The AO had invoked the provisions of Section 145(3) of the Act and estimated the income of the assessee on the basis of earlier history of the case. Therefore, we are of the view that it is a case of an estimate against an estimate. Hence, no penalty is leviable in such a case where additions are based purely on estimate basis. We also draw strength from the following case laws. (i) Gulraj Vaswani Vs. ACIT, (!TSSA No. 21/JP/06) in Tax World VoI-XXXIX page-35 held that Before Tribunal it has been submitted that at every level there has been an estimation varying as per difference of opinion from authority to authority and hence penalty cannot be levied on the estimated addition - Assessee has also submitted that no satisfaction about concealment of income has been recorded by the Assessing Officer during the course of assessment proceedings - Tribunal have considering these facts deleted the penalty - (ii) Smt. Bitoli Devi Vs. ACIT(2007), 110 TTJ (Luck) 735 (Unless any positive concealment is found no penalty is leviable on basis of addition made on estimate) (iii) Enfield Industries Ltd. Vs. DCIT, (2007) 13 SOT 28 (URO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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