M/s Jugendra Singh & Company, Etah V. D.C.I.T., Circle-3(1), Etah

ITA 420/AGR/2012

• Counselvise Citation: 42020314 RSA 2012
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-08-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 27-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ATHESHAM ANSARI
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 420/AGRA/2012 ASSTT. YEAR : 2005-06 M/S. JUGENDRA SINGH & COMPANY, VS. DCIT, CIRCLE 3(1), SURESHPURI, G.T. ROAD, ETAH. ETAH. (PAN: AABFJ 1334 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE. RESPONDENT BY : SHRI ATHESHAM ANSARI, JR. D.R. DATE OF HEARING : 21.08.2013 DATE OF PRONOUNCEMENT OF ORDER : 23.08.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A), GHAZIABAD DATED 14.06.2012 FOR THE ASSESSMENT YEAR 2005-06, CHALLENGING THE LEVY OF PENALTY U/S. 271(1)(C) OF THE IT ACT. 2. EARLIER, THE APPEAL OF THE ASSESSEE WAS DISMISSE D IN DEFAULT VIDE ORDER DATED 29.01.2013. THE ASSESSEE MOVED M.A. NO. 24 OF 2013 EXPLAINING THE REASONS FOR NON-APPEARANCE ON THE DATE OF HEARING. THE EARLIER ORDER DATED 29.01.2013 WAS RECALLED BY ALLOWING THE MISCELLANEOUS APPLICATION OF THE ASSESSEE VIDE ORDER DATED 07.08.2013 AND THE APPEAL OF THE ASSESSEE WAS REFIX ED FOR HEARING ON MERITS. ITA NO. 420/AGRA/2012 2 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS A FIRM AND FILED RETURN OF INCOME DISCLOSING THE INCOME OF RS.74,71,629/-. THE ASSESSEE IS A CONTRACTOR AND DERIVES INCOME FROM EXECUTING THE CONTRACT WORK OF THE GOVERNMENT DEPARTMENTS. THE ASSESSEE HAS SHOWN GROSS RECEIPTS OF RS.35,29,8 6,493/- AND NET PROFIT WAS DECLARED AT RS.74,71,629/-, WHICH IS APPROXIMATELY 2.1% OF THE GROSS TURNOVER. THE ASSESSEE FILED REQUIRED DETAILS BEFORE THE AO AT TH E ASSESSMENT STAGE. THE AO, HOWEVER, FOUND THAT THE ASSESSEE HAS MADE ALL PAYME NTS, APPROXIMATELY 90% IN CASH, FOR WHICH NO DOCUMENTARY EVIDENCES WERE AVAIL ABLE. THEREFORE, THE PAYMENTS OF EXPENSES IN CASH WERE NOT VERIFIABLE. CERTAIN LI ABILITIES WERE ALSO NOT VERIFIABLE, THEREFORE, BOOK RESULTS WERE REJECTED U/S. 145 OF T HE IT ACT AND NET PROFIT WAS INCREASED BY 1% AND THE AO ADOPTED N.P. RATE OF 3.1 % AGAINST TURNOVER AND MADE ADDITION OF RS.35,29,870/- TO COVER ALL THE DISCREP ANCIES IN THE EXPENSES DEBITED TO THE TRADING AND PROFIT & LOSS ACCOUNTS. TOTAL INCOM E WAS, THUS, COMPUTED AT RS.1,10,01,500/- AND PENALTY PROCEEDINGS WERE INITI ATED ON ACCOUNT OF CONCEALMENT OF INCOME. THE ASSESSEE AT THE PENALTY STAGE SUBMIT TED BEFORE THE AO THAT THE ADDITIONS WERE MADE PURELY ON ESTIMATE BASIS. THERE FORE, IT IS NOT A CASE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. THE ADDITION IS MADE ON REJECTION OF BOOK RESULTS BY AP PLYING HIGHER PROFIT RATE ONLY TO COVER UP CERTAIN DISCREPANCIES IN THE EXPENSES CLAI MED. THE AO IMPOSED PENALTY ITA NO. 420/AGRA/2012 3 U/S. 271(1)(C) OF THE IT ACT, WHICH IS ALSO CONFIRM ED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. THE LD. CIT(A) NOTED THAT IN EARLIE R YEAR ALSO BOOK RESULTS HAVE BEEN REJECTED AND INCOME HAS BEEN COMPUTED BY APPLY ING HIGHER PROFIT RATE. THEREFORE, THE PENALTY WAS CONFIRMED. 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT ULTIMATELY INC OME IS COMPUTED BY APPLYING HIGHER PROFIT RATE AND THE ASSESSEE DID NOT CHALLEN GE THE ADDITION EVEN BEFORE THE LD. CIT(A). HE HAS SUBMITTED LIST OF SEVERAL CASES IN S UPPORT OF HIS CONTENTION THAT ON ESTIMATE OF INCOME, PENALTY IS NOT LEVIABLE. HE HAS FURTHER SUBMITTED THAT THE AO IN THE PENALTY ORDER DID NOT MENTION WHETHER PENALTY W AS IMPOSED FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS. TH EREFORE, PENALTY IS NOT LEVIABLE. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDER S OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE IS A CONTRACTOR DE RIVING INCOME FROM EXECUTING CONTRACT WORKS OF THE GOVERNMENT DEPARTMENTS. IT IS NOT A DENYING FACT THAT IN THE GOVERNMENT CONTRACT, PROFIT MARGIN IS ALWAYS VERY L OW AS COMPARED TO OTHERS. THE ASSESSEE FURNISHED COMPLETE DETAILS BEFORE THE AO A T THE ASSESSMENT STAGE AS REQUIRED BY THE AO, HOWEVER, ACCORDING TO THE AO CE RTAIN EXPENSES WHICH WERE ITA NO. 420/AGRA/2012 4 INCURRED IN CASH WERE NOT SUBJECTED TO VERIFICATION . THEREFORE, TO COVER ALL THE DISCREPANCIES OF EXPENSES, BOOK RESULTS WERE REJECT ED AND PROFIT RATE FROM 2.1% WAS ENHANCED TO 3.1%. THE AO DID NOT MENTION IN THE ASSESSMENT ORDER AS TO WHICH PARTICULARS HAVE BEEN CONCEALED BY THE ASSESS EE. IN THE PENALTY ORDER, THE AO DID NOT MENTION WHETHER HE HAS IMPOSED THE PENAL TY FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. HONBLE GUJRATE HIGH COURT IN THE CASE OF NEW SORATHIA ENGINEERING CO. V S. CIT, 282 ITR 642, HELD : IT IS INCUMBENT UPON THE ASSESSING OFFICER TO STATE WHETHER PENALTY WAS BEING LEVIED FOR CONCEALMENT OF PARTICU LARS OF INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE PARTICULARS OF INCOME HAD BEEN FURNISHED BY THE ASSESSEE. THE ISSUE IS, THEREFORE, SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ABOVE JUDGMENT. FURTHER, ITAT, AGRA BENCH RECENTLY IN THE CASE OF SHRI LAXMI NARAYAN RAMSWAROOP SHIVHARE VS. ACIT AND SHRI LAXMI NARAIN RAM SWAROOP SHIVHARE & COMPANY IN ITA NOS. 545 AND 547/AGRA/2012 VIDE ORDE R DATED 14.08.2013 CANCELLED THE LEVY OF PENALTY ON ESTIMATE OF INCOME . THE FINDINGS OF THE TRIBUNAL IN THIS CASE ARE REPRODUCED AS UNDER : 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUS ED THE FINDINGS OF THE AUTHORITIES BELOW. IN BOTH THE CASE S THE ASSESSEES ARE IN THE BUSINESS OF LIQUOR AND FILED THE RETURN OF INCO ME DISCLOSING SUBSTANTIAL INCOME FROM THE BUSINESS. THE A.O. TOOK UP THE MATTER FOR ASSESSMENT ON THE ISSUE OF NET PROFIT. THE ASSESSEE COULD NOT PRODUCE CERTAIN VOUCHERS OF PURCHASE AND EXPENSES. THEREFOR E, A.O. DIRECTED TO REJECT BOOK RESULT UNDER SECTION 145(3) OF THE A CT AND ALSO DIRECTED AS TO WHY THE SALES SHOULD NOT BE ENHANCED AND HIGH ER N.P. RATE ITA NO. 420/AGRA/2012 5 SHOULD NOT BE APPLIED AS AGAINST SALES AND N.P. DEC LARED BY THE ASSESSEE. IN ITA NO. 545/AGRA/2012 EVEN THE A.O. PR OPOSED TO ESTIMATE THE SALES AT THE LESSER TURNOVER AT 11.15 CRORES AS AGAINST 11.44 CRORES DISCLOSED BY THE ASSESSEE. THE VARIATI ON OF N.P. RATE DECLARED BY THE ASSESSEE AND PROPOSED BY THE A.O. W AS ALSO NOT SIGNIFICANTLY HIGHER. SAME IS POSITION IN OTHER APP EAL IN ITA NO. 547/AGR/2012. IT IS, THEREFORE, CLEAR THAT THE A.O. WANTED TO MAKE ADDITION AGAINST THE NET PROFIT OF THE ASSESSEE BY ESTIMATING THE INCOME OF THE ASSESSEE. HOWEVER, THE ASSESSEE EXPLAINED BE FORE A.O. THAT BOOKS OF ACCOUNTS OF THE ASSESSEE ARE AUDITED AND T HE PURCHASES ARE MADE FROM THE EXCISE DEPARTMENT AND BUSINESS IS UND ER THE CONTROL OF EXCISE ACT. THIS SUBMISSION OF THE ASSESSEE HAS NOT BEEN DISPUTED BY THE A.O. IN OUR VIEW ALSO THIS SUBMISSION COULD NOT HAVE BEEN DISPUTED BY THE A.O. BECAUSE IN THE LIQUOR BUSINESS THE PURCHASE ARE ALWAYS MADE FROM THE EXCISE DEPARTMENT AND THE BUSI NESS IS ALWAYS UNDER CONTROL OF EXCISE DEPARTMENT. THEREFORE, THER E SHOULD NOT HAVE BEEN ANY DOUBT REGARDING GENUINENESS OF THE PURCHAS E MADE FROM THE EXCISE DEPARTMENT. AT THE MOST, THE SALES WOULD NOT HAVE BEEN VERIFIABLE, BUT IN THE LIQUOR BUSINESS THE SALES AR E GENERALLY MADE IN CASH, THEREFORE, THERE IS NO QUESTION OF VERIFICATI ON OF THE CASH SALES MADE BY THE ASSESSEE. THEREFORE, THE NON-PRODUCTION OF THE PURCHASE BILLS ON EXPENSES WOULD NOT BE MUCH SIGNIFICANT TO PROVE THAT ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME OR CONCE ALED THE PARTICULARS OF INCOME. THE ASSESSEE ALSO EXPLAINED THAT DUE TO HEALTH PROBLEM AND BUSINESS IS NOT BEING RUN SMOOTHLY, THEREFORE, IN O RDER TO BUY PEACE THE ASSESSEE MADE SURRENDER IN BOTH THE CASES FOR P OSSIBLE LEAKAGE OF INCOME FOR NON-MAINTENANCE OF DOCUMENTS AND VOUCHER S. IT WOULD, THEREFORE, PROVE THAT THERE WAS NO DEFINITE FINDING OF FACT RECORDED BY THE A.O. THAT IT IS A CASE OF FILING OF INACCURATE PARTICULARS OF INCOME. THE EXPLANATION OF THE ASSESSEE HAS BEEN FOUND TO B E REASONABLE AND ACCEPTABLE TO THE A.O. AND THE OFFER OF SURRENDER MADE BY THE ASSESSEE IN RESPONSE TO THE REJECTION OF THE BOOKS OF ACCOUN TS HAVE BEEN ULTIMATELY ACCEPTED BY THE A.O. WHEN A.O. ACCEPTED SURRENDER IN BOTH THE CASES AS AGAINST PROPOSED REJECTION OF THE BOOKS OF ACCOUNTS AND ESTIMATE OF INCOME, THE A.O. SHOULD NOT HAVE IN ITIATED THE PENALTY PROCEEDINGS AGAINST THE ASSESSEE. 7. WE MAY ALSO NOTE HERE THAT IN ITA NO.545/AGR/201 2 IF AS PER PROPOSED NOTICE OF THE A.O. THE ENHANCED TURNOVER AND ENHANCED N.P. RATE IS TAKEN INTO CONSIDERATION, THE TOTAL INCOME SHOULD BE COMPUTED AT RS.33,45,000/- BUT THE A.O. AFTER ACCEPTING THE SUR RENDER OF ITA NO. 420/AGRA/2012 6 RS.4,00,000/- COMPUTED TO THE TOTAL INCOME ON ESTIM ATE OF RS.30,25,922/-. THUS, EVEN THE A.O. ACCEPTED LESSER SURRENDER FROM THE ASSESSEE. SIMILARLY IN ITA NO.547/AGRA/2012 IF THE PROPOSED TURN OVER OF THE A.O. AND N.P. ARE TAKEN INTO CONSIDERAT ION INCOME SHOULD HAVE BEEN COMPUTED OF RS.2,25,00,000/- BUT THE A.O. AFTER ACCEPTED SURRENDER OF RS.55,00,000/- COMPUTED THE INCOME OF THE ASSESSEE AT RS.1,87,95,773/-. THUS, IN BOTH THE CASES THE A.O. ISSUED PROPOSED NOTICE TO ESTIMATE THE HIGHER INCOME BUT ULTIMATELY ACCEPTED LOWER SURRENDER MADE BY THE ASSESSEE. THEREFORE, IT IS CL EAR FROM THE ABOVE FINDINGS OF FACT THAT THE PROPOSED NOTICE OF THE A. O. TO ENHANCE INCOME OF THE ASSESSEE WAS NOT BASED UPON ANY MATER IAL OR FACT. THE PROPOSED NOTICE OF THE A.O. THUS WOULD NOT DISCLOSE IN ANY MANNER AS TO HOW THE A.O. WAS SATISFIED BY SUCH FIGURE TO MAK E ESTIMATE OF INCOME. THE PROPOSED ESTIMATE OF INCOME BY THE A.O. WAS FOUND NOT ACCURATE TO THE KNOWLEDGE OF THE A.O. THUS, HOW A.O . CAN GIVE FINDING AGAINST THE ASSESSEE THAT ASSESSEE FILED IN ACCURATE PARTICULARS OF INCOME IN THE PENALTY ORDER. THE ASSESSEE HAS MA DE SURRENDER OF THE AMOUNT IN QUESTION FOR POSSIBLE LEAKAGE OF INCO ME FOR NON MAINTENANCE OF SOME DOCUMENTS AND VOUCHERS IN PROPE R MANNER. THEREFORE, THE ASSESSEE NEVER ACCEPTED BEFORE A.O. THAT ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME IN THE RETUR N OF INCOME. THE A.O. DID NOT STATE IN ASSESSMENT ORDER AS TO HOW TH E PARTICULARS OF INCOME DISCLOSED BY THE ASSESSEE IN THE RETURN OF I NCOME WERE INACCURATE. ULTIMATELY, THE ESTIMATED INCOME IS COM PUTED BY THE A.O. IN THE ASSESSMENT ORDER. IT IS WELL SETTLED LAW THA T THE ADDITION MADE ON THE BASIS OF ESTIMATE AND NOT ON CONCRETE EVIDENCE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS, THEREF ORE, NO PENALTY IS LEVIABLE. WE RELY UPON THE DECISIONS OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. DHILLON R ICE MILLS (2002) 256 ITR 447, CIT VS. RAVAIL SINGH AND CO. (2002) 254 ITR 191 AND HARIGOPAL SINGH VS.CIT (2002) 258 ITR 85. HONBLE SUPREME COURT IN THE CASE OF M/S RAJASTHAN SPINNING AND WEAVING M ILLS 2009-TIOL- 63 HELD THAT ON EVERY DEFAULT PENALTY IS NOT AUTOMA TIC. THE HONBLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF IN COME-TAX VS. K.R. CHINNI KRISHNA CHETTY (2000) 246 ITR 121 HELD HELD, THAT UNDER SECTION 271(1)(C) OF THE ACT, THE ASSESSING AUTHORITY IS GIVEN THE DISCRETION TO LEVY A PENALTY IF THERE IS CONCEALMENT OF PARTICULARS OF INCOME AND EVEN AS REGARDS THE QUANT UM OF THE PENALTY THERE IS A DISCRETION. THAT DISCRETION WAS AVAILABL E TO THE TRIBUNAL AS ITA NO. 420/AGRA/2012 7 WELL WHEN IT CONSIDERED THE MATTER IN APPEAL. OF GR EATER IMPORTANCE IS THE NECESSITY FOR A DEFINITE FINDING THAT THERE IS CONCEALMENT, AS WITHOUT SUCH A FINDING OF CONCEALMENT, THERE CAN BE NO QUESTION OF IMPOSING ANY PENALTY. THE MERE REVISION OF THE INCO ME TO A HIGHER FIGURE BY THE ASSESSING AUTHORITY DID NOT AUTOMATIC ALLY WARRANT AN INFERENCE OF CONCEALMENT OF THE EXPENDITURE ON THE CONSTRUCTION. THE ADDITION TO THE INCOME OF THE ASSESSEE BASED ON THE REPORT OF THE VALUER WAS RIGHTLY REGARDED BY THE TRIBUNAL AS BEIN G INSUFFICIENT FOR RECORDING A FINDING OF CONCEALMENT OF INCOME. CONCE ALMENT IMPLIES SOME DELIBERATE ACT ON THE PART OF THE ASSESSEE IN WITHHOLDING THE TRUE FACTS FROM THE AUTHORITIES. THE FACT THAT THE VALUE R ASSESSED THE BUILDING AT A FIGURE HIGHER THAN THE ONE REPORTED B Y THE ASSESSEE DID NOT BY ITSELF LEAD TO THE INFERENCE THAT THERE HAD BEEN CONCEALMENT. THERE WAS NO EVIDENCE TO SHOW THAT THE ASSESSEE HAD DELIBERATELY CONCEALED THE COST OF CONSTRUCTION. THE ASSESSEE WA S NOT REQUIRED TO REPORT THE PROGRESS OF THE CONSTRUCTION AS THE RETU RN DID NOT REQUIRE HIM TO DO SO. THEREFORE, THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS NOT VALID. 7.1 HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. MOOL CHAND SIRI KISHAN DASS (2001) 248 ITR 463 HELD THE ASSESSEE FILED A RETURN OF INCOME FROM SALARY AT RS.1,800. ACTION WAS TAKEN UNDER SECTION 34 OF THE INDIAN INCOME-TAX ACT, 1922, AND REASSESSMENT WAS COMPLETED ON AUGUST 28, 1958, FOR THE ASSESSMENT YEAR 1954-55, WHICH WAS SET ASIDE BY THE APPELLATE ASSISTANT COMMISSIONER ON NOVEMBER 6, 1959. WHILE MAKING A FR ESH ASSESSMENT, THE ASSESSING OFFICER MADE ENQUIRIES IN TO THE BUSINESS ACTIVITIES OF THE ASSESSEE WHO ULTIMATELY AGREED FO R ASSESSMENT ON A TOTAL INCOME OF RS.29,900 AS PER THE ENDORSEMENT IN THE ORDER-SHEET OF THE ASSESSING OFFICER DATED FEBRUARY 7, 1973. THE I NCOME-TAX OFFICER INITIATED PENAL PROCEEDINGS AND IMPOSED PENALTY. ON APPEAL, THE APPELLATE ASSISANT COMMISSIONER UPHELD THE DECISION OF THE ASSESSING OFFICER. ON FURTHER APPEAL, THE TRIBUNAL HELD THAT MERELY BECAUSE THERE WAS AN AGREEMENT FOR ASSESSMENT AT A PARTICUL AR FIGURE THAT DID NOT PER SE BRING IN THE CONCEPT OF CONCEALMENT. THE REVENUE DID NOT PROVE CONCEALMENT WHICH WOULD ENABLE IT TO LEVY PEN ALTY UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961. ON A REFERENCE: HELD, THAT THE RETURN WAS FILED MUCH EARLIER TO AP RIL 1, 1964, AND REASSESSMENT WAS COMPLETED ON AUGUST 28, 1958, WHICH AGAIN WAS SET ASIDE BY THE APPELLATE ASSISTANT COMMISSION ER ON NOVEMBER ITA NO. 420/AGRA/2012 8 6, 1959. THAT BEING THE POSITION, THE REVENUE WAS R EQUIRED TO PROVE CONCEALMENT. HENCE, THE TRIBUNAL WAS RIGHT IN HOLDI NG THAT PENALTY UNDER SECTION 271(1)(C) COULD NOT BE IMPOSED. 7.2 HONBLE M.P. HIGH COURT IN THE CASE OF CIT VS. BETA NEPTHOL LTD. (2005) 272 ITR 323 HELD HELD, DISMISSING THE APPEAL, THAT THE ASSESSEE HA D SURRENDERED THE DISPUTED ITEMS AND PAID TAX THEREON. IN THE OPINION OF BOTH THE AUTHORITIES, I.E., THE COMMISSIONER (APPEALS) AND T HE TRIBUNAL, NO CASE WHATSOEVER WAS MADE OUT TO INVOKE THE PROVISIO NS OF SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961, AND HENCE, T HE ORDER OF PENALTY PASSED BY THE ASSESSING OFFICER WAS NOT SUSTAINABLE . THIS WAS CORRECT AND DID NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION O F LAW. 7.3 I.T.A.T. HYDERABAD BENCH IN THE CASE OF BALARAM KRISHNA ENGG. CONTRS. CORPN VS. DEPUTY COMMISSIONER OF INCOME-TAX (1996) 56 ITD 411 HELD SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 PE NALTY- FOR CONCEALMENT OF INCOME- WHETHER, ON FACTS STATED UND ER HEAD BEST JUDGMENT ASSESSMENT, GROSS PROFIT ADDITION WOULD B E A MATTER OF ESTIMATING PROFIT OR DISALLOWANCE OF ROUTINE NATURE AND WOULD NOT CONSTITUTE CONCEALMENT ON PART OF ASSESSEE AND NO P ENALTY WOULD BE LEVIABLE ON THIS ACCOUNT HELD, YES WHETHER THOU GH SUM OF RS.8,28,781/- REPRESENTED CONCEALMENT BECAUSE OF SU PPRESSION OF RECEIPTS, YET NO PENALTY WITH RESPECT THERETO COULD BE LEVIED BECAUSE RETURNED INCOME AS WELL AS ASSESSED INCOME WAS A LO SS AND THERE WAS NO TAX PAYABLE BY ASSESSEE HELD, YES 8. CONSIDERING THE ABOVE DISCUSSION, IN THE LIGHT O F THE ABOVE DECISIONS, IT IS CLEAR THAT NO DEFINITE FINDING OF FACT OR ANY CONTRARY MATERIAL HAS BEEN BROUGHT ON RECORD TO PROVE THAT T HE ASSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME. IN THE ABSE NCE ANY DETAILED DISCUSSION, ANY MATERIAL ON RECORD, WE ARE OF THE V IEW THAT LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN THE F ACTS AND CIRCUMSTANCES OF THE CASE AT ESTIMATE OF INCOME, WO ULD NOT BE WARRANTED. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY UNDER SECTION 271(1)(C ) OF THE ACT. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ITA NO. 420/AGRA/2012 9 THE DECISIONS CONSIDERED IN THE ABOVE CASE HAVE BEE N CITED BY THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING ON FILING THE PAPER BOOK. SINCE THOSE DECISIONS HAVE ALREADY BEEN CONSIDERED AS ABOVE, TH EREFORE, THERE IS NO NEED TO REPEAT THE SAME. CONSIDERING THE ABOVE DISCUSSION A ND FOLLOWING THE ABOVE DECISIONS AND ORDER OF THE TRIBUNAL, WE ARE OF THE VIEW THAT PENALTY IS NOT LEVIABLE ON MERE ESTIMATE OF INCOME OR MERE REVISING THE INC OME TO A HIGHER FIGURE. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW AND CANCEL THE LEVY OF PENALTY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY