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TMI Blog2023 (6) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant : Sh. P. N. Bhatia, Advocate For the Respondent : Sh. S. L. Anuragi, Sr. DR ORDER PER YOGESH KUMAR U.S., JM: This appeal is filed by the assessee for assessment year 2011-12 against the order of the Learned Commissioner of Income Tax (Appeals)-Moradabad order dated 13/09/2018. 2. The grounds taken in this appeal are as under: 1. That Learned CIT(Appeal) has erred in law and facts confirming the imposition of penalty under the Income Tax Act 1961 amounting to Rs. 28000/-. vide appeal no. 52HTO- 3(3)/BJR/17-18 DATED 13.09.2018 (Considering reassessed tax on reassessed income after appeal effect Rs. 27810/- instead of Rs. 11537/-. tax on reassessed income). 2. The Learned CIT(Appeal) has not appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l may be condoned. The application filed by the Assessee for condoning the said delay of 798 days which reads as under:- Appeal is Time barred by 798 days : it is submitted as under that I filed Appeal for assessment year 2011-12 on 14.12.2018 and the Appeal Fee of Rs. 1500/-. was also deposited in State Bank of India by me vide Challan No. 0001 on 17.11.2018 and sent through the Trackon courier services on 14,12.2018 vide Receipt no. 1368771591 and was delivered on 17.12.2018 as informed by the courier agency. I am about 75 years of age and had .gone through two heart surgery and I was continuously confined to bed from December, 2018 to January 2020; and I was under the follow up of doctor and due to the spreading the Corona vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions of the assessee for condoning the delay are that the assessee has paid fees of Rs.1,500/- and dispatched the entire appeal memo along with the fee Challan No. 001 dated 17/11/2018 which has been delivered the office of the Tribunal but the Appeal has not been registered by the Office of the Tribunal. Further contended that, the assessee is aged about 75 years had gone through two heart surgeries and was restricted to bed right from December 2018 to January, 2020 and thereafter due to corona situations the movement of the assessee was restricted and could not make follow up regarding the appeal sent by the Assessee. The Assessee has also enclosed courier receipt, original appeal fee Challan and the doctor certificate. 7. Consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 4,30,010/- and the addition made on account of cash deposit of Rs. 12,55,200/- has been deleted. The penalty proceedings has been initiated on the estimations worked out by the Department after giving appeal effect to the order of CIT(A). Therefore submitted that no penalty proceedings are maintainable on the estimated addition, thus the present Appeal deserves to be allowed. 10. On the other hand, the Ld. DR has not disputed the above facts but relied on the orders of the Lower Authorities and prayed for dismissal of the Appeal. 11. We have heard the parties perused the material available on record. As could be seen from the order of the CIT(A), the Ld. CIT(A) in the quantum Appeal filed by the assessee gave partly relief by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271(1)(c) of the Act can be imposed when the income is determined on estimate basis in following manners:- 5. Against this order, the assessee filed an appeal before the CIT(A), who deleted the penalty imposed vide order dt. 7th Sept., 2007, holding that the addition made by the AO on the basis of estimated profit cannot be a subject-matter of penalty for concealment of income. The CIT(A) further found that penalty was not imposable in view of the substantial deduction given by the Tribunal and observed as under : I have considered the submissions of the assessee and perused the facts that are ruling in the instant case. There is no doubt that there are certain discrepancies noticed in the course of special audit as brought out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleting the penalty. The operative portion of the impugned order dt. 4th Dec., 2008 is as follows : As the facts emerge the substantial quantum relief was given by the CIT(A) which has been confirmed by the Tribunal, the balance pertains to estimated rate of profit applied on the turnover of the assessee which in our view does not amount to concealment or furnishing inaccurate particulars. In our view, the CIT(A) has taken right decision in deleting the penalty which is upheld. 7. The appeal is filed against the above-mentioned order of the Tribunal dt. 4th Dec., 2008. The finding arrived at by the Tribunal does not warrant interference from this Court as it is purely a finding of fact. No perversity has been pointed in such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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