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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 ..... 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 appreciated the facts that assessee neither furnished any inaccurate particulars of income or nor it was held that there was any concealment of income on the facts of the case nor any material was placed regarding filing of inaccurate particulars nor concealment of income so provision of section 271(l)(c) are not applicable. 3. That this vary fact was ignored by the learned CIT(Appeal), that penalty was imposed on the basis of estimate of income and so the estimated profit @8%. Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med 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 virus decease was effective all over India so my movement was not possible to verify the exact delivery position of courier and the courier agency always assured of delivery of the courier. I came to know at last that Income Tax Appellate Tribunal is not accepting the appeal memo through courier so their remain no alternative except to file appeal request of condonation of delay, I humbly request that I should not the punished for the fault of courier agency and as I was also not medically fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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. Considering the fact that the assessee is a senior citizen and taking treatment for his heart ailment and also considering the fact that the assessee had sent the appeal memo to the registry along with appeal fee on 14/12/2018 itself, though the filing of appeal is not permissible through the courier service, adopting liberal view by taking into consideration of the age and health conditions of the assessee, we deem it fit to condone the dealy of 798 days in filing the present appeal. Accordingly, the delay of 798 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sustaining addition determining the income on estimation basis in following manners:- "The AO has not mentioned any investigation done by him during the remand proceedings or whether lie has examined the accounts or not. In the assessment order, he has not only added the cash deposits but also has estimated the sales taking net profit @ 8%. He has given the following calculation for it:- i (Unexplained cash deposit with Punjab National Hank Bearing account No. II03000100070764 Branch Gajraula Shiv Bijnor treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in their report. However, such discrepancies by itself ipso facto lead to the conclusion that the assessee has concealed the income. Ultimately the AO has to resort to estimated addition only. He could not point out any specific item of any addition with any conclusive evidence. Even the addition made by the AO on estimated basis is substantially reduced by the CIT(A) after considering the various facts and figures and circumstances of the case. The said action of the CIT(A) has become final consequent to the decision of the Hon'ble Tribunal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a finding. Consequently, no substantial question of law arises for consideration. As a result, the appeal is dismissed." 13. The Hon'ble Gujarat High Court in the case of CIT vs. Subhash Trading Company (Guj) on the same issue has held as follows: "Where income is assessed on estimate basis after rejecting book results, penalty under s. 271(1)(c) cannot be imposed by mere application of Explanation thereof in the absence of any evidence to conclude a positive finding that there was concealment of income." 14. Similar view has been taken by the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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