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TMI Blog2021 (1) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... n this aspect. It is settled position of law that in case where the income is assessed on estimated basis levy of penalty u/s 271(1)(c) of the Act cannot be upheld. - Decided in favour of assessee. - ITA Nos.3089 & 3090/PUN/2017 (Assessment Years : 2007-08 & 2008-09) - - - Dated:- 2-11-2020 - SHRI INTU RI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM Assessee by: None Revenue by: Shri Mahadevan A.M. Krishanan ORDER PER INTURI RAMA RAO, AM: These are appeals filed by the assessee directed against different orders of the Commissioner of Income Tax (Appeals)-1, Kolhapur ( CIT(A) for short) commonly dated 26.10.2017 for the Assessment Years 2007-08 and 2008-09. 2. Since, the identical facts and issues ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed under section 271(1)(c) is bad in law, in view of the fact that both at the time of initiation as well as at the time of imposition of the penalty the Assessing Officer was not clear as to which limb of section 271(1)(c) was attracted? 6. The brief facts of the case are as under :- The appellant is a partnership firm stated to be engaged in the business of carrying out civil contract works. The return of income for the assessment year 2007-08 was filed on 01.10.2007 declaring total income of ₹ 74,632/-. After processing the said return of income, the case was selected for scrutiny and assessment came to be completed u/s 143(3) of the of the Income Tax Act, 1961 ( the Act for short) at total income of ₹ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer to adopt only 60% of the gross receipts as taxable income and also directed the Assessing Officer to examine the allowance interest and salary paid to the partners under the provisions of section 40(b) of the Act. While the matter stood thus the Assessing Officer had proceeded with the levy of penalty u/s 271(1)(c) of the Act vide an order dated 30.03.2012 for concealment of particulars of income rejecting the submissions of the appellant to keep the penalty proceedings in abeyance till the appeal of the assessee is disposed of by the Tribunal. 8. Being aggrieved by the order of penalty u/s 271(1)(c) of the Act, the appellant was preferred an appeal before the ld. CIT(A), who vide his impugned order confirmed the action of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to re-compute the penalty in terms of order passed by this Tribunal in quantum appeal vide order dated 31.12.2012 (supra). 11. We heard the rival submissions and perused the material on record. The only issue in the present appeal relates to the validity of the penalty levied u/s 271(1)(c) of the Act. From the evidence on record, it is clear that the income was assessed on estimated basis i.e. the rate of 60% of the gross receipts, therefore, the income assessed originally by the Assessing Officer had come down whereas the penalty was levied with respect to the original assessed income by the Assessing Officer. The ld. CIT(A) obviously lost sight of the Tribunal s order passed in the quantum appeal, however, without dwelling fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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