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TMI Blog2021 (8) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the Assessing Officer. Even otherwise also, the Revenue has not adduced any cogent material before us to demonstrate that the order passed by the learned CIT(A) deleting the penalty imposed by the Assessing Officer under section 271(1)(c) of the Act is void ab initio. - Decided against revenue. - ITA no.6837/Mum./2019 - - - Dated:- 8-7-2021 - Shri S. Rifaur Rahman, Accountant Member And Shri Pavan Kumar Gadale, Judicial Member For the Revenue : Shri T.S. Khalsa For the Assessee : None ORDER PER S. RIFAUR RAHMAN, A.M. The aforesaid appeal has been filed by the Revenue challenging the order dated 23rd August 2019, passed by the learned Income Tax Commissioner (Appeals) 26, Mumbai, deleting penalty of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Whether on the facts and in the circumstances of the case and in law, the IA. CIT(A) was correct in holding that assessee has neither concealed the particulars of income nor has it furnished inaccurate particulars of income, there being are no findings of the AO that the details furnished by the assessee in his return are found to be inaccurate or erroneous or false, without appreciating the fact that by resorting to bogus purchases/ accommodation entry, the assessee made an attempt to reduce the profitability and thereby attempted to avoid taxes, which in itself proves beyond doubt that assessee concealed particulars of income? 4. Brief facts of the case are, the assessee being a proprietorship firm in the name and style of M/s. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has failed to furnish evidence such as delivery challans, transportation details, etc. The Assessing Officer held that the onus to prove any expenditure is on the assessee and the assessee did not prove purchases from the parties it was claimed to have been purchased, hence, onus was not discharged by the assessee. Accordingly, the Assessing Officer estimated 15% keeping in mind the principle laid down by the Hon'ble Jurisdictional High Court in H.M. Esufali Abdulali as well as the decision of the Hon ble Gujarat High Court in Simit P. Sheth, [2013] 356 ITR 451 (Guj.) and made addition of ₹ 4,42,955 being 15% of the non genuine purchases worth ₹ 29,53,032. 5. Consequent upon the aforesaid estimated addition made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of inaccurate particulars of income. In the present case, the purchase had been duly shown by the appellant in its books of account but it could not produce the party from whom the purchase had been made. It is not the case of the A.O. that the impugned purchases have been proved to be bogus conclusively and there were no corresponding sales. In a recent case before the Allahabad High Court in the case of Naresh Chand Agarwal v/s CIT, 357 ITR 0514 (All.), it has been held that: 12. In the instant case, nothing was concealed by the assessee. It was the A. 0. who has rejected the books of account in the second round and applied the 8 percent net profit rate prescribed under Section 44 AO In the instant case, the turnover is more than 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITAT, Mumbai in ITA No. 93/Mum./2011 dated 10.04,2015 in the case of DCIT 14(2) vs. M/s. Rishabh lmpex Gulabdas Co. deleted the penalty u/s. 271(1)(c) of the Act levied on addition made on estimation basis. Further, in a recent decision of Delhi ITAT in the case of Shruti Fastners Ltd. vs. DCIT (2017) 49 CCH 0183 Del Trib and ITAT Mumbai in the case of Rakeshkumar M. Gupta vs. ITO (2017) 49 CCH 0066 MumTrib, it has been held that where income has been estimated, the appellant cannot be said to have concealed particulars of income or furnished inaccurate particulars of income and therefore, penalty u/s 271(1)(c) was not leviable. 6.5 In the background of the aforesaid discussions and respectfully following the precedents, as above a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is made therein on that basis. In the present case also, the facts are similar and hence no penalty ought to have been levied by the Assessing Officer. Even otherwise also, the Revenue has not adduced any cogent material before us to demonstrate that the order passed by the learned CIT(A) deleting the penalty imposed by the Assessing Officer under section 271(1)(c) of the Act is void ab initio. Consequently, in view of the aforesaid, we do not find any legal infirmity in the order passed by the learned CIT(A) warranting us to interfere in his order as such. The Grounds raised by the Revenue are dismissed. 10. In the net result, Revenue s appeal is dismissed. Order pronounced in the open court on 08.07.2021 - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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