Shri Siddharth Goel , 429A, Kutchery Road, Ajmer-305001, Ajmer V. ACIT Circle-2, Ajmer, Circle-2, Ajmer

ITA 1097/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8847 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 09-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Keywords: Depreciation; TDS; Set aside
• Section: 271(1)(c); 13

Judgement Text

1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 744, 745 & 1097/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12, 2012-13 & 2014-15 SIDDHARTH GOEL, 429A, KUTCHERY ROAD, AJMER-305001 CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-02, AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABFPG0284Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SUNIL PORWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K. C. GUPTA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/01/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 13/01/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE THREE APPEALS FILED BY THE ASSESSEE AGAI NST THE ORDER OF LD. CIT(A), AJMER DATED 22.04.2019 & 21.08 .2019 SUSTAINING THE LEVY OF PENALTY U/S 271(1)(C) FOR A.YS 2011-12, 2012-13 & 2014-15 RESPECTIVELY. SINCE THE COMMON ISSUES ARE INVOLVED, ALL THESE APPEALS WERE HEARD T OGETHER AND ARE DISPOSED OFF BY THIS CONSOLIDATED ORDER. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE PENALTY HAS BEEN LEVIED BY THE ASSESSING OFFICER ON ESTIMATION OF RENTAL INCOME OF CHITRAKOOT PLACE WHEREIN THE ASSES SING OFFICER HAS INITIALLY ESTIMATED THE RENTAL INCOME AT RS. 4,43,4 96/- WHICH ON ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 2 APPEAL HAS BEEN REDUCED BY THE LD. CIT(A) TO RS. 2, 50,000/- FOR A.Y 2011-12. SIMILARLY, FOR A.Y 2012-13, THE AO ESTIMAT ED THE RENTAL INCOME AT RS. 5,50,000/- WHICH ON APPEAL HAS BEEN R EDUCED TO RS. 3,50,000/- BY THE LD. CIT(A). SIMILARLY, FOR A. Y 2014-15, THE AO HAS ESTIMATED RENTAL INCOME AT RS. 1,10,000/- WHICH ON APPEAL HAS BEEN REDUCED TO RS. 66,000/- BY THE LD. CIT(A). IT WAS SUBMITTED THAT THE ELEMENT OF CONSCIOUS CONCEALMENT AND INACC URATE PARTICULARS ARE NOT PRESENT IN THE INSTANT CASE AS THERE IS NO DIRECT EVIDENCE TO SHOW OR SOME CIRCUMSTANCES FOUND FROM W HICH IT CAN BE GATHERED THAT OMISSION WAS ATTRIBUTABLE TO AN INTEN TION OR DESIRE ON PART OF THE ASSESSEE TO HIDE OR CONCEAL HIS INCOME. IT WAS SUBMITTED THAT THERE IS NO POSITIVE ACT OF CONCEALMENT ON PAR T OF THE ASSESSEE AND THUS PENALTY SHOULD NOT BE LEVIED AND RELIANCE WAS PLACED ON THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN CASE OF HARIGOPAL SINGH VS CIT (2002) 258 ITR 95. IT WAS F URTHER SUBMITTED THAT IN THE SHOW-CAUSE NOTICE, THE AO HAS NOT SPECI FIED THE LIMB ON THE BASIS OF WHICH PENALTY WAS PROPOSED TO BE LEVIE D AND THE AO HAS SIMPLY ISSUED A PRE-PRINTED FORM WITHOUT STRIKI NG OFF THE UNNECESSARY PORTION OF NOTICE WHICH SHOWS NON-APPLI CATION OF MIND BY THE AO AND RELIANCE WAS PLACED ON THE DECISION O F HONBLE KARNATAKA HIGH COURT IN CASE OF MANJUNATHA COTTON & GINNING FACTORY [2013] 359 ITR 565. 3. IT WAS FURTHER SUBMITTED THAT FOR A.Y 2011-12 A ND A.Y 2012- 13 , THE AO HAS ALSO LEVIED PENALTY ON DISALLOWANCE OF DEPRECIATION ON AN AIR CONDITIONER. IT WAS SUBMITTED THAT MERE DISALLOWANCE OF CLAIM OF DEPRECIATION CANNOT FORM THE BASIS FOR LEV Y OF PENALTY BY THE ASSESSING OFFICER AND RELIANCE WAS PLACED ON HO NBLE SUPREME COURT DECISION IN CASE OF RELIANCE PETRO PRODUCTS. FURTHER, FOR A.Y ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 3 2014-15, IT WAS SUBMITTED THAT THE ASSESSING OFFICE R HAS LEVIED PENALTY ON NON-DISCLOSURE OF INTEREST INCOME OF RS. 4579/-. IT WAS SUBMITTED THAT THE SAID AMOUNT REPRESENT THE TDS ON INTEREST INCOME AND THE ASSESSEE HAS INADVERTENTLY REPORTED THE NET INTEREST INCOME BASIS THE AMOUNT RECEIVED/CREDITED IN HIS BA NK ACCOUNT INSTEAD OF GROSS INTEREST INCOME. IT WAS ACCORDINGL Y SUBMITTED THAT BEING AN INADVERTENT MISTAKE, THE SAME SHOULD NOT F ORM THE BASIS FOR LEVY OF PENALTY. 4. PER CONTRA, THE LD. DR SUBMITTED THAT IT IS NOT CORRECT TO SAY THAT THE RENTAL INCOME IS BASIS PURE ESTIMATION. IN FACT, THE AO HAS REOPENED THE ASSESSMENT PROCEEDINGS BASIS THIS VERY REASON AND CARRIED OUT DETAIL EXAMINATION AND BASIS THEREOF, T HE ESTIMATION WAS MADE AND OUR REFERENCE WAS DRAWN TO THE PAGE NO. 8 OF THE ASSESSING OFFICER ORDER FOR A.Y 2011-12 WHICH READS AS UNDER:- THE ASSESSEE'S A/R'S REPLY AND THE DETAILS FILED H AVE BEEN TAKEN INTO CONSIDERATION. AFTER CONSIDERING THE SAM E, THE FOLLOWING FACTS HAVE EMERGED:- 1) THE ASSESSEE'S PLOT IS LOCATED AT PRIME LOCATION. 2) THE ASSESSEE HIMSELF HAS ADMITTED THAT THE MARRIAGES ARE MAINLY SOLEMNISED ON AUSPICIOUS DAYS ACCORDING TO 'MAHURATS'. 3) THE TOTAL MAHURATS FOR MARRIAGES DURING THE YEAR WE RE '28' AS AGAINST THE 17 BOOKINGS MENTIONED/STATED BY THE ASS ESSEE IN HIS REPLY. 4) MOREOVER, BIRTHDAY PARTIES ARE ALSO ORGANISED IN TH E GARDEN AND THE BOOKING/SALES FOR THE SAME HAS BEEN ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 4 CLAIMED TO HAVE BEEN PART OF THE RECEIPTS OF THE MA NGO MASALA. 5) BESIDES THESE OTHER FUNCTIONS ARE ALSO ORGANISED IN THE PLOT, SUCH AS GARBA AS CLAIMED BY THE ASSESSEE. 6) FURTHER, IF GARBA IS ORGANISED IN THE SAME PLOT; TH EN, THE MARRIAGES CAN BE ORGANISED IN THE SAID PLOT; AS THE GATHERING IN THE GARBA FESTIVAL IS OUGHT TO BE MORE THAN THE GATHERING IN MARRIAGE. THUS, MORE VEHICLES HAVE TO BE PARKED FOR THE MORE GATHERING. THEREFORE, THE ASSESSEE'S PLEA FOR THE CONSTRAINT OF THE PARKING I S ALSO NOT TENABLE. 7) THUS, IN VIEW OF THE ABOVE, THE PLOT IS OUGHT TO HA VE BEEN LET-OUT AT LEAST FOR THE NUMBER OF OCCASIONS O N WHICH THE MAHURATS ARE THERE AS PER THE PANCHANG; I .E. 28. 8) FURTHER, CONSIDERING THE FACT THAT THE PARTIES WHO HAD BOOKED THE PLOT FOR THE FUNCTIONS HAVE ADMITTED TO HAVE PAID THE SUM AS MENTIONED BY THE ASSESSEE. THE RATE S ARE VARYING FROM RS.10,000/- TO RS.20,000/-. THEREF ORE, FOR THE REMAINING 11(28-17) MAHURATS, THE RATE OF BOOKING IS ADOPTED AT RS.15,000/- EACH AND THUS, TH E RESULTANT SUM OF RS.1,65,000/- IS ADDED TO THE TOTA L INCOME. 9) THE CLAIM OF THE HOUSE TAXES AND THE OTHER MISC EXPENSES IS NOT ALLOWABLE IN VIEW OF THE FACT THAT THE SAME WAS NOT ON ACCOUNT OF THE PLOT UNDER CONSIDERATION AND THE EVIDENCES OF THE MISC. EXPENS ES HAVE ALSO NOT BEEN SUBMITTED. IN VIEW OF THE SAME, THE ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 5 SUM OF RS.99,496/- (RS.90,168/- FOR MUNICIPAL TAXES PLUS RS. 9,328/- FOR OTHER EXPENSES) IS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 10) TAKING INTO CONSIDERATION THE RATES FOR MARRIAGE BOOKINGS, THE OTHER SMALL PARTY(IES)'S RATES IS ADO PTED AT THE SUM OF RS.5,000/- EACH AND THE NUMBER OF PARTIE S ARE ESTIMATED AT 10. THEREBY, THE SAME RESULTS IN ADDITION FOR THE SUM OF RS.50,000/-. 11) THE TOTAL EXHIBITIONS ARE ESTIMATED AT 5 NUMBERS FOR 3 DAYS EACH @ RS.5,000/- PER DAY AT THE SUM OF RS. 75,000/- AND ONE GARBA PARTY IS ESTIMATED ON ACCOUN T OF NAVRATARAS OF WINTER FOR 9 DAYS @ RS.5,000/-PER DAY . THEREBY, THE SUM OF RS.45,000/- IS ADDED ON ACCOUNT OF GARBA PARTY. 12) CONSIDERING ALL ABOVE, THE SUM TOTAL OF RS.4,34,496/- (165000 + 99496 +50000 +75000 +45000) IS ADDED ON ACCOUNT OF THE INCOME OF CHITRAKOOT PLOT. PENALTY PROCEEDINGS U/S 271(1) (C) ARE BEING INITIATED ON THIS ISSUE FOR FURNISHING INACCU RATE PARTICULARS OF THE INCOME. IT WAS SUBMITTED THAT SIMILAR FINDINGS ARE RECORDED IN OTHER TWO ASSESSMENT YEARS. IT WAS ACCORDINGLY SUBMITTED THA T THERE IS NO INFIRMITY IN THE ORDER OF THE LOWER AUTHORITIES AND LEVY OF PENALTY ON RENTAL INCOME MAY BE CONFIRMED. 5. IT WAS FURTHER SUBMITTED BY THE LD DR THAT THE A IR CONDITIONER WAS USED FOR PERSONAL PURPOSES AND THEREFORE, THERE WAS NO BASIS FOR CLAIM OF DEPRECIATION OF SUCH AIR CONDITIONER F OR BUSINESS ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 6 PURPOSES AND LEVY OF PENALTY SHOULD BE CONFIRMED. FURTHER, HE RELIED ON AND SUPPORTED THE ORDER OF THE LOWER AUTH ORITIES AND OUR REFERENCE WAS DRAWN TO THE FINDING OF THE LD. CIT(A ) FOR AY 2011-12 WHICH READS AS UNDER:- I HAVE GONE THROUGH THE PENALTY ORDER, STATEMENT O F FACTS, GROUNDS OF APPEAL AND WRITTEN SUBMISSION CAREFULLY. IT IS SEEN THAT THE APPELLANT EITHER DURING THE COURSE OF ASSE SSMENT PROCEEDINGS OR PENALTY PROCEEDINGS HAS NOT BEEN ABL E TO SHOW THAT HE HAD DECLARED CORRECT RENTAL INCOME WAS GENUINE. FURTHER, THE CLAIM OF INADMISSIBLE DEPRECI ATION OF RS. 3,251/- HAS ALSO BEEN ADMITTED BY THE APPELLANT. TH EREFORE, I AM OF CONSIDERED VIEW THAT THE AO HAS RIGHTLY LEVIE D THE PENALTY OF RS. 78,255/- U/S 271(1)(C) IN RESPECT OF ADDITION/ DISALLOWANCE OF RS. 2,53,251/- (RS.2,50,000 + RS. 3 ,251). ACCORDINGLY, THE PENALTY OF RS. 78,255/- LEVIED BY THE AO U/S 271(1)(C) IS HEREBY CONFIRMED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT FOR A.Y 2011-12, THE RENTAL INCOME HAS BEEN DETERMINED BY THE ASSESSING OFFICER NOT BA SIS ANY MATERIAL OR DIRECT EVIDENCE FOUND AGAINST THE ASSESSEE BUT B ASIS THE HYPOTHESIS THAT THE PLOT OUGHT TO HAVE BEEN LET-OUT AT LEAST FOR THE NUMBER OF OCCASIONS ON WHICH THE MAHURATS ARE THERE AS PER THE PANCHANG I.E. 28 DURING THE RESPECTIVE YEAR. THEREF ORE, FOR THE REMAINING 11 MAHURATS OTHER THAN 17 MAHURATS FOR WH ICH ASSESSEE HAS ALREADY OFFERED RENTAL INCOME, BASIS T HE AVERAGE RATE OF BOOKING OF RS 15,000/-, RENTAL INCOME WAS E STIMATED AT RS.1,65,000/-. FURTHER, RENTAL FOR SMALL PARTIES , EXHIBITION AND GARBA PARTY WERE AGAIN ESTIMATED BY THE ASSESSI NG ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 7 OFFICER. SIMILAR FINDINGS ARE RECORDED FOR OTHER TW O ASSESSMENT YEARS. THE SAID DETERMINATION OF INCOME COULD FORM THE BASIS OF ADDITION IN THE QUANTUM PROCEEDIN GS, HOWEVER FOR THE PURPOSES OF LEVY OF PENALTY, MERE A DDITION MADE IN THE ASSESSMENT ORDER COULD NOT FORM THE BAS IS OF LEVY OF PENALTY. IT IS A SETTLED LEGAL PROPOSITION THAT ASSESSMENT AND PENALTY PROCEEDINGS ARE SEPARATE PROCEEDINGS AND THEREFORE, MERE ADDITION MADE IN TH E ASSESSMENT ORDER IS NOT SUFFICIENT FOR LEVY OF PENA LTY. FURTHER, WE FIND THAT AGAINST SAID ESTIMATION OF IN COME DONE BY THE ASSESSING OFFICER, THE LD CIT(A) HAS REDUCED THE QUANTUM OF ESTIMATION OF RENTAL INCOME. THEREFORE, WHERE THERE IS NO POSITIVE EVIDENCE OR MATERIAL BEYOND DO UBT OF ASSESSEE HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME, MERE A DDITION IN THE QUANTUM PROCEEDINGS IS NOT SUFFICIENT TO HOLD A SSESSEE LIABLE FOR LEVY OF PENALTY. IN THIS REGARD, USEFUL REFERENCE CAN BE DRAWN TO THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF MAHENDRA SINGH KEDLA (DB APPEAL NO. 174/2010 DATED 19.03.2012) WHEREIN IT WAS HELD AS UNDER: 6. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED COUNSEL FOR APPELLANT AND EXAMINED THE REASONS ASSI GNED BY APPELLATE AUTHORITY AS WELL AS APPELLATE TRIBUNAL F OR SETTING ASIDE THE PENALTY ORDER. 7. THE APPELLATE AUTHORITY AS WELL AS THE APPELLATE TRIBUNAL BOTH CONSIDERED THE MATTER IN DETAIL AND B Y SPEAKING ORDER SET ASIDE THE PENALTY LEVIED BY ASSESSING OFF ICER, IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. THE RE LEVANT PORTION OF PARA 7 OF ORDER OF THE TRIBUNAL IS REPRO DUCED AS UNDER:- ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 8 PARA 7. ..... ....... ..... ..... ...... ......THE ENQUIRY CONDUCTED BY THE AO MAY LEAD TO ARRIVE AT THE FINDI NGS AS TO WHETHER THE PARTICULARS DISCLOSED ARE TRUTHFUL OR F ALSE OR NOT PROVED TO BE SATISFACTORY. IN THE FIRST CASE IT WOU LD BE A POSITIVE CASE OF NO CONCEALMENT, IN SECOND CASE IT WOULD BE A POSITIVE CASE OF CONCEALMENT AND IN THIRD CASE BENE FIT OF DOUBT WILL GO IN FAVOUR OF THE ASSESSEE. THE CASE O F THE ASSESSEE FALLS WITHIN THIRD CATEGORY WHERE THE ALLE GED FACT OF INTRODUCTION OF CAPITAL IS FOUND TO BE NOT PROVED S ATISFACTORILY. THEREFORE, IT IS NOT A CASE OF POSITIVE CONCEALMENT AND BENEFIT OF DOUBT GOES IN FAVOUR OF THE ASSESSEE. THERE IS N O DISPUTE THAT TRADING ADDITION WAS MADE ON THE BASIS OF ESTI MATION BECAUSE THE RESULTS SHOWN BY THE ASSESSEE WAS NOT F OUND SATISFACTORY BY THE AO. WHERE AN ESTIMATED ADDITION WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF ON THE PART OF THE ASSESSEE TO THE EXTENT OF AMOUNT IN DIFFERENCE SHOWN BY THE ASSESSEE AND ESTI MATED BY THE DEPARTMENT DEPENDS UPON THE FACTS AND CIRCUMSTA NCES OF THE CASE. ..... ..... ..... .... ..... ..... ..... ....... UNDER THESE CIRCUMSTANCES WHEN IN THE PRESENT CASE THERE WAS NO POSITIVE EVIDENCE BEYOND DOUBT REGARDI NG ESTIMATED TRADING ADDITION THAT THE AMOUNT IN DIFFE RENCE BETWEEN THE RESULT SHOWN BY THE ASSESSEE AND THAT E STIMATED BY THE AO WAS RESULTANT OF CONCEALMENT OF PARTICULA RS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF ON THE PART OF THE ASSESSEE, PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT BE LEVIED. THE AO HAD REJECTED THE BOOKS OF ACCOUNT AND ESTIMATED THE TRADING ADDITION ON THE BASIS THA T THE ASSESSEE HAD NOT MAINTAINED SITE-WISE ACCOUNT, NO H EAD-WISE DETAILS OF CLAIMED PURCHASES WERE FURNISHED, NO SEP ARATE HEAD OF EXPENSES WAS MAINTAINED, WORK IN PROGRESS WAS NO T DECLARED, SOME WAGES WERE SHOWN OUTSTANDING WITHOUT COMPLETE DETAILS OF CREDITORS, STOCK REGISTER WAS N OT MAINTAINED AND MISC. EXPENSES ON WATER TRANSPORTATI ON ETC. WERE NOT VERIFIABLE AND PURCHASE VOUCHERS OF SAND, STEEL, BAJRI ETC. WERE SELF MADE ETC. ASSESSEE EXPLAINED REASONS FOR THE ABOVE DEFECTS WHICH WERE NOT ACCEPTED BY THE AO AS NOT FOUND SATISFACTORY. THE AO ACCORDINGLY MADE ESTIMAT ION. THE CIRCUMSTANCES SUGGEST THAT IT MAY BE JUST AND PROPE R CASE OF MAKING ESTIMATED TRADING ADDITION BUT AN INFERENCE THEREFROM ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 9 CANNOT BE DRAWN BEYOND DOUBT ESPECIALLY KEEPING IN MIND THE NATURE OF WORK IN NOT MAINTAINING THOSE BOOKS AND D ETAILS SUPPORTED WITH PROPER VOUCHERS ETC. THAT THERE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF ON THE PART OF THE ASSESSEE TO ATTRACT THE PENAL PROVISIONS. IN VIEW OF ABOVE DISCUSSION AND K EEPING IN MIND THE FACT AND CIRCUMSTANCES OF THE PRESENT CASE , WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS JUSTIFIED IN DE LETING THE PENALTY IN ABSENCE OF POSITIVE EVIDENCE WITH THE DE PARTMENT THAT THERE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF ON THE PA RT OF THE ASSESSEE TOWARDS THE ADDITION IN QUESTION. THE FIRS T APPELLATE ORDER ON THE ISUSE IS THUS UPHELD. 8. THE ABOVE FINDING OF THE TRIBUNAL MAKES IT CLEAR THAT ADDITIONS MADE BY THE ASSESSING OFFICER WERE BASED ON ESTIMATION ONLY. A FACT OR ALLEGATION BASED ON ESTI MATION CANNOT BE SAID TO BE CORRECT ONLY, IT CAN BE INCORR ECT ALSO. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, PENALTY WAS WRONGLY LEVIED BY THE ASSESSING OFFICER. THE BA SIS FOR LEVYING PENALTY IN THE PRESENT CASE IS ONLY ESTIMAT ION, WHICH IS PURELY A QUESTION OF FACT AND THERE IS A CONCURRENT FINDING OF FACT RECORDED BY FIRST APPELLATE AUTHORITY AS WELL AS THE APPELLATE TRIBUNAL BOTH. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF HARIGOPAL SINGH VS. CIT ( SUPRA). IN LIGHT OF ABOVE DISCUSSIONS, RESPECTFULLY FOLLOWING THE DECISIONS REFERRED SUPRA, LEVY OF PENALTY ON ESTIMATED RENTAL INCOME CANNOT BE SUSTAINED AND IS HEREBY DIRECTED TO BE DE LETED. 7. FURTHER, MERE DISALLOWANCE OF DEPRECIATION CLAIM WHERE ALL PARTICULARS ARE ON RECORD AND INADVERTENT MISTA KE OF DISCLOSING THE INTEREST INCOME NET OF TDS INSTEAD O F GROSS OF TDS IN THE RETURN OF INCOME WHERE BOTH INTEREST INC OME AND TDS IS APPARENT FROM THE RETURN OF INCOME CANNOT FO RM THE ITA NO. 744, 745 & 1097/JP/2019 SHRI SIDDHARTH GOEL, AJMER VS. ACIT, AJMER 10 BASIS FOR LEVY OF PENALTY ON ACCOUNT OF FURNISHING INACCURATE PARTICULARS OF INCOME AND IS HEREBY DIRECTED TO BE DELETED. IN THE RESULT, ALL THE THREE APPEALS FILED BY THE A SSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/01/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/01/2020. *GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SIDDHARTH GOEL, AJMER 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-02, AJMER 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA. NO. 744, 745 & 1097/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR 11