The Income-tax Officer, Srinagar (J&K) V. M/s. Age Construction Pvt. Ltd, Srinagar (J&K)

ITA 293/ASR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8803 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 03-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SHARDA
• Assessee Lawyers: PADAM BAHL
• Keywords: Gross profit estimation; Unexplained cash credit; Assessment record
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 PAN :AIKPK4965G INCOME TAX OFFICER, VS. M/S. AGE CONSTRUCTION PVT. LTD., WARD 3(1), SRINAGAR. ZERO BRIDGE, SRINAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.K.SHARDA, DR RESPONDENT BY: SH. PADAM BAHL, CA DATE OF HEARING: 05/01/2016 DATE OF PRONOUNCEMENT: 04/03/2016 ORDER PER A.D. JAIN, JM: THIS IS THE DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 2005-06 AGAINST THE ORDER, DATED 06.02.2013, PASSED BY THE LD. CIT(A), JAMMU. THE DEPARTMENT HAS RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES WHETHER LD. CIT( A) WAS RIGHT IN DELETING THE PENALTY IMPOSED U/S 271(1)(C) OF RS.13,88,830/- WHEN THE ASSESSEE HAD FAILED TO PROD UCE BOOKS OF ACCOUNT DURING ASSESSMENT PROCEEDINGS IN CONFIRMATION OF THE INCOME DECLARED BY THE ASSESSEE . UNDER THESE CIRCUMSTANCES, THE INCOME ASSESSED OVER AND A BOVE THE INCOME RETURNED BY THE ASSESSEE REPRESENTS ITS CONCEALED INCOME. 2. ON THE FACTS AND CIRCUMSTANCES WHETHER LD. CIT(A ) WAS RIGHT IN DELETING IMPOSED U/S 271(1)(C) RS.13,88,830/- WH EN PENALTY U/S 271(1)(C) HAS BEEN UPHELD IN THE FOLLO WING CASE LAWS DESPITE THE FACT THAT THE ADDITION MADE WAS B ASED ON ESTIMATE BASIS. ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 2 1. ADDL. CIT VS. CHANDRAKANTAHA AND ANOTHER, 205 ITR 6 07 (ALL). 2. ADDL. CIT VS. LAKSHMI INDUSTRIES AND COLD STORATGE CO. LTD. 146 ITR 492 (ALL.) 3. SUSHIL KUMAR SHARAD KUMAR VS. CIT 232 ITR 588 (ALL) 4. A.M. SHAH & CO. VS. CIT, 238 ITR 415 (GUJ.) 5. CIT VS. SWARUP COLD STORAGE & GENERAL MILLS, 136 IT R 435 (ALL.) 6. CIT VS. CHANDRA VILAS HOTEL, 292 ITR 202 (GUJ.) 2. THE FACTS ARE THAT THE ASSESSEE, A PRIVATE LIMIT ED COMPANY, FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005-06, D ECLARING A TAXABLE INCOME OF RS.1,27,217/-. THE AO ASSESSED THE INCOME AT RS.1,66,98,147/-, VIDE ASSESSMENT ORDER PASSED U/S 144 OF THE I.T. ACT. THE SAID ASSESSMENT ORDER WAS CHALLENGED BY THE ASS ESSEE BEFORE THE LD. CIT(A0, UNDER SECTION 164 OF THE ACT. THE ORDER PAS SED U/S 164 CONFIRMED INCOME AT RS.39,22,515/-. IN THE PENALTY ORDER, THE AO REITERATED THAT DUE TO NON-FURNISHING OF DETAILS A ND BOOKS OF ACCOUNT, HE HAD ESTIMATED THE INCOME @ 10% OF THE TURNOVER FROM CONTRACT RECEIPT OF RS.3,92,28,150/- AND HAD ARRIVED AT AN INCOME OF RS .39,22,515/-, IN VIEW OF THE JUDGMENT OF THE ITAT, AMRITSAR, IN THE CASE OF M/S. POOJA CONSTRUCTION COMPANY, 66 TTJ (ASR) 733, WHEREIN TH E ITAT UPHELD THE ESTIMATION OF NET PROFIT AT THE RATE OF 10% OF THE GROSS RECEIPTS AS REASONABLE IN CONSTRUCTION CONTRACTS. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE PENALTY OF RS.13,88,830 /-, BRINGING THE DEPARTMENT IN APPEAL BEFORE US. 3. THE LD. DR HAS CONTENDED THAT THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY IMPOSED BY THE AO, WHEN THE ASSESSEE HA D FAILED TO PRODUCE ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 3 BOOKS OF ACCOUNT DURING ASSESSMENT PROCEEDINGS IN CONFIRMATION OF THE INCOME DECLARED BY THE ASSESSEE. THUS, THE INCOME A SSESSED OVER AND ABOVE THE INCOME RETURNED BY THE ASSESSEE REPRESENT ED ITS CONCEALED INCOME. HE ALSO PLACED RELIANCE ON THE VARIOUS CASE LAWS ( AS REPRODUCED ABOVE IN THE GROUNDS OF APPEAL), WHEREIN PENALTY U/ S 271(1)(C) OF THE ACT HAS BEEN UPHELD, DESPITE THE FACT THAT THE ADDITION MADE WAS BASED ON ESTIMATE BASIS: 4. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 5. WE HAVE HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL PLACED ON RECORD, THE AO, WHILE LEVYING THE PENALT Y, IN QUESTION, OBSERVED AS FOLLOWS: I HAVE GONE THROUGH THE REPLY FILED BY THE ASSESSE E AD THE CASE LAWS REFERRED BY IT IN ITS REPLY. THE MAIN CO NTENTION OF THE ASSESSEE IS THAT THE ADDITION OF RS.39,22,515/- HAS BEEN MADE ON ACCOUNT OF ESTIMATION BY APPLYING RATE OF 1 0% OF THE TURNOVER. HERE, IT IS PERTINENT TO MENTION THAT ASS ESSMENT BY ESTIMATION IS ONE OF THE KNOWN METHODS OF ASSESSMEN T IN THE TAXATION WORLD WHERE THE ASSESSEE CONCEALS RELEVAN T MATERIAL EVIDENCE. THE REVENUE HAS NO OPTION BUT TO MAKE A BEST JUDGMENT BY ESTIMATE. AN ASSESSMENT BY ESTIMAT ION IS AS MUCH LEGAL AS ANY OTHER ASSESSMENT. ONCE AN ASSESSM ENT HAS BEEN DONE, WHETHER IT IS BEST ASSESSMENT OR OTH ERWISE, THE FIGURE ASSESSED MUST BE HELD TO BE THE INCOME O F THE ASSESSEE. THIS VIEW HAS BEEN HELD BY HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. WARSAT HU SSAIN, (1988)171 ITR 405, 412 (PUNJ). FURTHER, IF THE DIFF ERENCE BETWEEN INCOME ASSESSED AND THE INCOME RETURNED IS DUE TO FRAUD OR GROSS OR WILLFUL NEGLECT ON THE PART OF TH E ASSESSEE THEN IT CANNOT BE SAID THAT INCOME RETURNED WAS THE RESULT OF THE HONEST BELIEF OF THE ASSESSEE REGARDING HIS EXA CT INCOME (HARI LAI KUNJ BEHARI LAI (1977) 166 ITR 720 (ALL). IN THE PRESENT CASE, THE ASSESSEE HAS NOT FURNISHED ANY MA TERIAL TO THE ASSESSING OFFICER WHO WAS FORCED TO COMPLETE TH E ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 4 ASSESSMENT TO THE BEST OF HIS JUDGMENT. IT IS NOT A CASE WHERE BEST JUDGMENT WAS MADE BECAUSE OF THE FACT THAT ASS ESSEE INSPITE OF FURNISHING ALL THE INFORMATION AVAILABLE WITH HIM WAS UNABLE TO SATISFY THE A.O. REGARDING THE QUANTU M OF THE INCOME. ON THE CONTRARY IT IS A CASE WHERE THE ASSE SSEE HAS DELIBERATELY CONCEALED THE MATERIAL FACTS WHICH WER E IMPORTANT FOR THE ASSESSMENT OF THE CASE. THE ASSES SEE DID NOT PRODUCE THE BOOKS OF ACCOUNTS, DID NOT FURNISH REPLY TO THE QUESTIONNAIRE, DID NOT COMPLY WITH THE NOTICES ISSU ED U/S 142(1) OF THE I.T. ACT, 1961, DID NOT FURNISH DETAI LS REGARDING, PURCHASE OF MATERIAL, AND WAGES ETC. ALL THESE WERE MATERIAL INFORMATION REGARDING THE ASSESSMENT OF THE INCOME OF THE ASSESSEE. ON THE CONTRARY, THE ASSESSEE, DURING THE ASSESSMENT PROCEEDINGS HAD QUITE DELIBERATELY NOT O NLY AVOIDED THE FURNISHING OF THE INFORMATION AS CALLED BY THE ASSESSING OFFICER AND HAD AVOIDED THE PRODUCTION OF BOOKS OF ACCOUNTS, BUT HAD ALSO DELIBERATELY SOUGHT ADJOURNM ENTS ON ONE PRETEXT OR THE OTHER, IN ORDER TO DODGE THE ASS ESSING OFFICER. THE ASSESSEE HAD EITHER NOT ATTENDED THE H EARINGS FIXED LAY THE ASSESSING OFFICER OR WHEN ATTENDED, H AD SOUGHT ADJOURNMENTS, EACH TIME, WITH A PROMISE THAT THE BO OKS OF ACCOUNTS AND THE REPLY TO THE QUESTIONNAIRE WOULD B E FURNISHED ON THE NEXT HEARING. HOWEVER, TILL THE LA ST, THE SAME WERE NEVER FURNISHED/ PRODUCED. I HAVE ALSO GONE TH ROUGH THE ASSESSMENT RECORD AND IN PARTICULAR THE ORDER SHEET ENTRIES RECORDED BY THE ASSESSING OFFICER. A PERUSAL OF THE SAME REVEALS THAT THE A.O. HAD GIVEN_ SUFFICIENT OPPORTU NITIES TO THE ASSESSEE TO FURNISH THE INFORMATION AND TO PRODUCE BOOKS OF ACCOUNTS. HOWEVER, THE ASSESSEE HAD NEVER FURNISHED THE INFORMATION CALLED FOR BY THE A.O. AND HAD EVER PRO DUCED THE BOOKS OF ACCOUNTS. I HAVE NOT FOUND ANY PLAUSIBLE R EASON SUBMITTED BY THE ASSESSEE, TO THE A.O., DURING THE ASSESSMENT PROCEEDINGS FOR NOT FURNISHING THE INFORMATION AND FOR NOT PRODUCING THE BOOKS OF ACCOUNTS.' 6. DELETING THE PENALTY, THE LD. CIT(A) HELD AS UND ER: 4.3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MY VIEW S ARE THAT PENALTY IS NOT LEVIABLE WHEN INCOME IS EST IMATED EVEN THOUGH THE ESTIMATED INCOME ATTAINED FINALITY. THE ADDITION ON ESTIMATE BASIS WILL NOT RESULT IN A TTRACTING THE PENALTY PROVISION U/S 271 (1) (C).IN CIT VS K.R. CH INNI KRISHNA CHETTY (2000) 246 ITR/F/LAD), AN ESTIMATED ADDITIO N MADE IN RESPECT OF COST OF CONSTRUCTION BASED UPON THE VALU ATION MADE BY A VALUER, IT WAS HELD, DOES NOT JUSTIFY PENALTY. THE PENALTY ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 5 IS NOT AUTOMATIC ON ADDITION BEING CONFIRMED. THE L AW THAT ASSESSMENT AND PENALTY PROCEEDINGS ARE DIFFERENT AN D THAT PENALTY DOES NOT EXIGIBLE, MERELY BECAUSE THE ADDIT ION HAS BECOME FINAL. IT WAS IN THIS CONTEXT, THE HIGH COUR T IN CIT VS MATA < PRASAD [2005] 278 ITR 354 (ALL) FOUND NO MER IT IN DEPARTMENTAL APPEAL QUESTIONING THE DELETION OF PEN ALTY ON THE GROUND THAT THE TRIBUNAL ITSELF HAVING UPHELD THE A DDITION, COULD NOT HAVE DELETED THE PENALTY. ACCORDING TO TH E QUESTION RAISED, THIS AMOUNTED TO A VOLT FACE ON THE PART OF THE TRIBUNAL AMOUNTING TO A REVIEW OF ITS OWN FINDING IN QUANTUM APPEAL. - THE HIGH COURT FOUND THAT DECISION RENDERED ON EVID ENCE ON MATERIAL BY THE TRIBUNAL DID NOT SUFFER FROM ANY LE GAL INFIRMITY AND THAT TRIBUNAL WAS WELL WITHIN ITS JURISDICTION IN COMING TO THE CONCLUSION, THAT PENALTY WAS NOT LEVIABLE, THOU GH ADDITION WAS JUSTIFIED. THE PENALTY IS ALSO NOT LEVIABLE FOR ARTIFICIAL DISALLOWANCES. THE LAW THAT PENALTY WOULD NOT BE EXIGIBLE MERELY B ECAUSE AN ADDITION IS MADE ON ESTIMATE, BASIS WAS REITERATED IN CIT V. RAJ BANS SINGH [2005] 276 ITR 351(AII), WHERE THE I SSUE RELATED TO ESTIMATE OF INCOME OF TRUCK OPERATOR ON SALE OF A TRUCK. CONCEALMENT OF INCOME IS PRESUMED IN EVERY CASE OF DIFFERENCE BETWEEN REPORTED AND ASSESSED INCOME UNDER EXPLANAT ION 1 TO SECTION 27L(L)(C). BUT SUCH PRESUMPTION IS REBUT TABLE. THE EXPLANATION ITSELF PROVIDES FOR SUCH REBUTTAL IN CA SES, WHERE THE TAXPAYER HAS AN EXPLANATION FOR THE DIFFERENCE, PRODUCES ALL THE MATERIALS AVAILABLE WITH HIM AND SUCH EXPLA NATION IS NOT FOUND TO BE MALA FIDE. IN CASE OF ESTIMATED ADD ITIONS, PENALTIES ARE CONTINUED TO BE LEVIED IN ALMOST EVER Y CASE ON WRONG VIEW THAT EVERY ADDITION SHOULD ENTAIL PENALT Y. IN CIT V. DHILLON RICE MILLS 2002] 256 ITR 447(P & H), THE HI GH COURT HELD THAT IN A CASE OF ADDITION BASED UPON ESTIMAT ED HIGHER YIELD IN MANUFACTURE AND LOW GROSS PROFIT, THERE CA N BE NO PENALTY UNLESS THE INCOME-TAX DEPARTMENT BRINGS SOM ETHING ON RECORD TO INDICATE THAT THERE HAS BEEN CONCEALME NT ON THE PART OF THE ASSESSEE. IN COMING TO THIS CONCLUSION, IT FOLLOWED ITS OWN EARLIER DECISION IN CIT V. METAL PRODUCTS O F INDIA [1984] 150 ITR 714 (P&H). IT IS TRUE THAT ALL ESTIM ATE CASES MAY NOT AVOID PENALTY, AS IN A CASE, WHERE INCOME H AS TO BE ESTIMATED, WHERE BOOKS WERE FOUND TO BE INCOMPLETE DUE TO WILLFUL OMISSION OF SALES. PENALTY SHOULD NOT BE EX IGIBLE MERELY BECAUSE INCOME IS ESTIMATED DUE TO THE INABILITY OF ASSESSEE TO PROVE ITS INCOME. THE TAXPAYERS, WHO FILE RETURN NECESSARILY, ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 6 DESERVE BETTER TREATMENT THAN THOSE, WHO DO NOT FIL E THE RETURNS AT ALL. THE PROPOSITION THAT PENALTY CANNOT BE IMPOSED, WHE RE AN ADDITION IS BASED MERELY ON ESTIMATE FINDS FURTHER SUPPORT IN HARIGOPAL SINGH V. CIT[2002] 258 ITR 85 (P&H). AN ESTIMATE MADE BY THE ASSESSEE FOR RETURNING HIS INCOME AT RS. 12,000 PER BUS, WHERE SUCH ESTIMATE WAS FOUND T O BE LOW AND WAS SUBJECTED TO HIGHER ESTIMATE, THE DIFFERENC E COULD NOT BE SUBJECTED TO PENALTY, UNLESS IT COULD BE SHOWN T HAT THE ESTIMATE WAS NOT BONA FIDE OR THAT THERE WAS ANY GR OSS OF WILLFUL NEGLIGENCE ON THE PART OF THE ASSESSEE IN M AKING HIS ESTIMATE AS HELD IN CJT V. SMT. K. MEENAKSHI KUTTY [2002] 258 ITR 494 (MAD). IN COMING TO THE CONCLUSION THE HIGH COURT FOLLOWED ITS OWN DECISION IN A.K. BASHU SAHIB V. CI T [1977] 108 ITR 736 (MAD). THE ASSESSEE WHO IS A MANUFACTURER OF SALT CLAIMED LOSS DUE TO CYCLONE AND RAIN, BUT SUCH LOSS WAS NOT FULLY AC CEPTED, BECAUSE OF ESTIMATES INVOLVED. THERE IS NO ROOM FOR PENALTY FOR SUCH ESTIMATED ADDITION WAS HELD IN CIT V. VALIMKBH AI H. PATEL [2006] 280 ITR 487(GUJ). THE HIGH COURT ALSO POINTED OUT THERE IS NOT LEGAL ISSUE INVOLVED IN VIEW OF CONCUR RENT FINDING BY THE COMMISSIONER (APPEALS) AND APPELLATE TRIBUNA L. WHERE AN ESTIMATE OF INCOME WAS MADE FOR LACK OF VO UCHERS, PENALTY DOES NOT AUTOMATICALLY FOLLOW. WHERE ADDITI ON IS MADE SOLELY ON THE BASIS OF ESTIMATE WITHOUT ANY PROOF O F CONCEALMENT, BY WAY OF BEST-JUDGMENT ASSESSMENT, TH ERE COULD HARDLY BE ANY CASE OF PENALTY. IT WAS THIS LA W, WHICH WAS ADOPTED TO DELETE A PENALTY OF RS. 29,87,077/- SUSTAINED BY THE COMMISSIONED APPEALS) IN DR. HAKEEM S.A. SYE D SATHAR V. ASST. CIT [2009] 314 ITR (AT) 290 (CHENNA I). WHERE INCOME IS MERELY ESTIMATED, BUT THERE IS NO C ONCLUSIVE PROOF AVAILABLE AS IS EVIDENT FROM THE FACT THAT TH E ESTIMATED ADDITION WAS REDUCED IN FIRST APPEAL, THERE IS NO S COPE FOR LEVY OF PENALTY AS WAS POINTED OUT BY THE HIGH COURT IN CIT V. AERO TRADERS P. LTD. [2010] 322 ITR 316 (DELHI). THE HIG H COURT FOUND THAT THE DECISION OF THE TRIBUNAL IN THIS CAS E WAS PURELY ONE OF FACT, SO THAT THE APPEAL BY REVENUE COULD BE ENTERTAINED. MERELY BECAUSE THE ASSESSING OFFICER ESTIMATED ASS ESSEES PROFIT AT 10% OF GROSS PROFITS AS AGAINST 6.3% DIS CLOSED BY THE ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 7 ASSESSEE COULD NOT BE TAKEN AS CONCEALED INCOME, TH E DIFFERENCE, COUID NOT BE TAKEN SO AS TO JUSTIFY I NFERENCE OF CONCEALMENT. IN COMING TO THE CONCLUSION, THE HIGH COURT ADVERTED TO THE CONTROVERSY GENERATED BY THE DECISI ON IN A CENTRAL EXCISE CASE IN UNION OF INDIA Y. DHARMENDRA TEXTILE PROCESSOR [2008] 306 ITR 277 (SC) POINTING OUT THAT THE FINALITY HAS BEEN REACHED ON THIS CONTROVERSY BY THE SUPREME COURT DECISION IN CIT V. RELIANCE PETROPRODUCTS P. LTD. [ 2010] 322 ITR 158 (SC), SO THAT THE DEPARTMENTAL APPEAL AGAIN ST DELETION OF PENALTY WAS FOUND TO HAVE NO MERIT IN CIT V. VIJ AY KUMAR JAIN [2010] 325 ITR 378 (CHHATTISGARH). PENALTY IN ESTIMATE CASES SHOULD BE EXIGIBLE ONLY WHERE SUCH ESTIMATE I S CONSEQUENT TO FINDING OF CONCEALMENT LEADING TO SUC H ESTIMATE. 4.4. IN VIEW OF ABOVE DISCUSSION, I FIND THAT WHILE ESTIMATING OF INCOME THERE IS NO CONCEALMENT OF INCOME OR ITS PARTICULAR, BY THE AO HENCE PENALTY U/S 271(1)(C) IS NOT EXIGI BLE. IN VIEW OF ABOVE DISCUSSION I HEREBY DELETE THE PENALTY OF RS. 13,88,830/- 7. AS AGAINST THE LD. CIT(A)S RELIANCE ON THE AFO RESAID DECISIONS FOR THE PROPOSITION THAT NO CONCEALMENT PENALTY IS LEV IABLE IN A CASE OF ESTIMATION OF INCOME, THE DEPARTMENT STATES THAT IN THE FOLLOWING CASES, THE ADDITION MADE WAS ON ESTIMATE BASIS, BUT THE P ENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT WAS UPHELD: 1. ADDL. CIT VS. CHANDRAKANTAHA AND ANOTHER, 205 ITR 607 (ALL). 2 ADDL. CIT VS. LAKSHMI INDUSTRIES AND COLD STORAG E CO. LTD., 146 ITR 492 (ALL.) 3 SUSHIL KUMAR SHARAD KUMAR VS. CIT, 232 ITR 588 (A LL) 4. A.M. SHAH & CO. VS. CIT, 238 ITR 415 (GUJ.) 5. CIT VS. SWARUP COLD STORAGE & GENERAL MILLS, 136 ITR 435 ALL.). 6. CIT VS. CHANDRA VILAS HOTEL, 292 ITR 202 (GUJ .) 9. WITH REGARD TO THE ABOVE DECISIONS RELIED ON BY THE DEPARTMENT, IT IS SEEN AS FOLLOWS: ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 8 9.1. ADDL. CIT VS. CHANDRAKANTAHA AND ANOTHER 205 ITR 607 (ALL), WAS A CASE WHERE THE ASSESSEE REVISED O RIGINAL RETURN DECLARING LOSS OF RS.50,000/- TO SHOW INCOME OF RS.7,500/-. H ENCE, NOT A CASE OF ESTIMATION OF INCOME. 9.2. ADDL. CIT VS. LAKSHMI INDUSTRIES AND COLD ST ORAGE CO. LTD. 146 ITR 492 (ALL.), WAS A CASE WHERE PENALTY HAD BEE N LEVIED ON ACCOUNT OF UNEXPLAINED CASH CREDITS AND NOT ON ACCOUNT OF ESTI MATED ADDITIONS. 9.3 SUSHIL KUMAR SHARAD KUMAR VS. CIT, 232 ITR 5 88 (ALL) IS A CASE WHERE ADDITION WAS MADE FOR LOW DOMESTIC PERSONAL E XPENSES AND NOT ON ACCOUNT OF ESTIMATION OF INCOME. 9.4. A.M. SHAH & CO. VS. CIT, 238 ITR 415 (GUJ.) WAS A CASE WHERE DISCREPANCIES IN THE BOOKS OF ACCOUNT WERE FOUND AN D THERE WAS ALLEGED SUPPRESSION OF CLOSING STOCK, NOT A CASE OF ESTIMA TION OF INCOME. 9.5 CIT VS. SWARUP COLD STORAGE & GENERAL MILLS, 136 ITR 435 ALL.) WAS A CASE WHERE IT WAS HELD THAT THEIR WAS GROSS O R WILLFUL NEGLECT ON THE PART OF THE ASSESSEE AND PENALTY WAS LEVIED AND NOT A CASE OF ESTIMATION OF INCOME. 9.6. THE DEPARTMENT HAS ALSO SOUGHT TO RELY ON CIT VS. CHANDRA VILAS HOTEL, 292 ITR 202 (GUJ). HOWEVER, THERE IS NO SUC H REPORTED DECISION. 10. THUS, EVIDENTLY, IN NONE OF THE ABOVE CASES, TH E INCOME WAS ASSESSED BY WAY OF ESTIMATE. ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 9 11. IN THE PRESENT CASE, AS CORRECTLY NOTED BY THE LD. CIT(A), THE ADDITION WAS BY WAY OF ESTIMATING THE INCOME AND SU CH ESTIMATE WAS NOT A RESULT OF ANY FINDING OF ANY CONCEALMENT OF INCOM E, OR OF FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. THE ESTIMATION U/S 144 WAS OF RS.1,66,98,147/-. THIS WAS REDUCED TO AN ESTIMATE OF RS.39,22,515/-, VIDE ORDER PASSED U/S 164. EVEN TH E AO HAS, IN THE PENALTY ORDER, ADMITTED THE FACTUM OF ESTIMATION OF INCOME. 12. THUS, THE LD. CIT(A) HAS CORRECTLY RELIED ON THE DECISIONS FOR THE PROPOSITION THAT IN THE CASE OF ESTIMATION OF INCO ME, NO CONCEALMENT PENALTY IS LEVIABLE. NO DECISION TO THE CONTRARY HA S BEEN PLACED BEFORE US. 13. THUS, FINDING NO FORCE IN THE GROUNDS RAISED BY THE DEPARTMENT, THEY ARE REJECTED. THE ORDER UNDER APPEAL IS CONFIR MED. 14. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/03/ 2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04/03/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. AGE CONSTRUCTION PVT. LTD., SRINA GAR. 2. THE ITO WARD 3(1), SRINAGAR. 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, ITA NO.293(ASR)/2013 ASSESSMENT YEAR: 2005-06 10 AMRITSAR BENCH: AMRITSAR.