Income-tax Officer, V. Shri Rahul Ramesh Jori, Pune

ITA 921/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9265 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Corroborative evidences
• Section: 142(1); 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.921/PUN/2015 / ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD 6(3), PMT BUILDING, B WING, SHANKARSHETH ROAD, SWARGATE, PUNE 411 037. . / APPELLANT V/S SHRI RAHUL RAMESH JORI L/H SMT. JAYASHREE RAMESH JORI, 1039, MARGI GALLI, BUDHWAR PETH, PUNE 411 002. PAN : ABKPJ7883R. . / RESPONDENT / APPELLANT BY : SHRI AJAY MODI / RESPONDENT BY : NONE / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 4, PUNE DT.23.03.2015 FOR THE ASSESSMENT YEAR 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- 2.1 ASSESSEE IS A LEGAL HEIR OF LATE SMT. JAYASHREE JORI (PROPRIETOR OF CHETAK WINES.) THE RETURN OF INCOME WAS FILED ON 13.10.2009 DECLARING TOTAL INCOME AT RS.5,23,350/-. THE CAS E / DATE OF HEARING : 04.07.2017 / DATE OF PRONOUNCEMENT: 07.07.2017 2 WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED AND SERVED ON THE ASSESSEE. AS THER E WAS NON- COMPLIANCE TO THE VARIOUS NOTICES, ASSESSMENT WAS FRAMED U/S 144 OF THE ACT VIDE ORDER 19.12.2011 AND THE TOTAL INCOM E WAS DETERMINED AT RS.60,98,066/- INTER-ALIA BY MAKING ADDITION O F RS.55,74,716/- ON ACCOUNT OF ESTIMATION OF GROSS PROFIT. O N THE AFORESAID ADDITION OF GROSS PROFIT, AO HELD THAT THE ASSESS EE IS LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT AND ACCORDINGLY VID E ORDER DT.27.09.2013 LEVIED PENALTY OF RS.50,42,000/-. AGGRIEVE D BY THE PENALTY ORDER OF AO, THE MATTER WAS CARRIED BEFOR E LD.CIT(A), WHO VIDE ORDER DATED (IN APPEAL NO.PN/CIT(A)-4/IT O WD-3(2)/641/2013-14/14) DELETED THE PENALTY BY HOLDING AS UNDER : 3.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT ON THE ISSUE. THE FACTUAL POSITION UNDOUB TEDLY IS THAT THE APPELLANT DID NOT CO-OPERATE WITH THE ASSE SSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AND APART FROM TH E AUDITED ACCOUNTS AND COPY OF THE INCOME TAX RETURN, NO OTHER DOCUMENTS WAS FILED TO SUBSTANTIATE THAT THE PROFITS EARNED DURING THE YEAR PRESENTED THE CORRECT AND FAIR PICT URE. IT IS UNDERSTOOD THAT THE LATE APPELLANT WAS UNDER SEVERE FINANCIAL PRESSURE AND SOON AFTER HER DEATH, THE LIQUOR LICEN SE HAS ALSO BEEN REVOKED. EVEN DURING THE PENALTY PROCEEDINGS T HE LEGAL HEIR HAS NOT RESPONDED TO THE SHOW CAUSE NOTICE AND THER EFORE THE PENALTY PROCEEDINGS HAVE BEEN COMPLETED IN EX-PARTE MANNER. BE THAT AS IT MAY, IT IS CLEAR THAT THE PENALTY MATTER HAS TO BE DECIDED IN ISOLATION AND DIVORCED FROM THE QUANTUM PROCEEDINGS, AS HELD IN VARIOUS DECISIONS OF THE COURTS. - THE I NCOME HAS BEEN ASSESSED IN AN EX-PARTE MANNER. THE GP HAS BEEN EST IMATED @ 12% BUT THE ASSESSING OFFICER HAS NOT INDICATED ANY COMPARATIVE INSTANCE IN THE SIMILAR LINE OF BUSINESS OR IN THE A PPELLANT'S GEOGRAPHICAL LOCATION TO SHOW THAT THE GP ADOPTED W AS JUST AND PROPER. ON THE OTHER HAND, THE FIGURES OF PURCHASES AND SALES AS REFLECTED IN THE BOOKS AND RETURN OF INCOME HAVE BE EN LEFT UNDISTURBED BY. THE ASSESSING OFFICER. AS A MATTER OF FACT, AT PARA 2 OF THE ASSESSMENT ORDER, THE DETAILS OF THE CASH DEPOSITS MADE INTO THE APPELLANT'S BANK A/C WITH VIDYA SAHAK ARI BANK, ARE MENTIONED INDICATING THAT THE TOTAL OF SUCH DEP OSITS AMOUNT TO RS.3,92,02,352/. SIMILARLY THE AIR INFORMATION R EGARDING TCS ON THE LIQUOR PURCHASED BY THE APPELLANT INDICATED PURCHASES OF RS. 3,74,68,602/-. AS PER THE ASSESSING OFFICER, SINCE THE 3 PURCHASES OF LIQUOR INDICATED IN THE TRADING A/C OF THE APPELLANT IS RS.3,98,86,336/-, THE ITS DETAILS ALOE VERIFIABLE. THIS FINDING OF FACT BY THE ASSESSING OFFICER SUBSTANTIATES THE APP ELLANT'S CASE THAT THE PARTICULARS OF PURCHASES AND TURNOVER FURN ISHED IN THE RETURN OF INCOME ARE CORRECT. NO ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER TOWARDS SUPPRESSED SALES OR UNACC OUNTED PURCHASES BUT THESE FIGURES HAVE BEEN LEFT UNTOUCHE D BY THE ASSESSING OFFICER WHO HAS ONLY ESTIMATED THE GROSS PROFITS, WHICH IN HER VIEW, ARE UNSUBSTANTIATED AND MARGINAL,' VIS -A-VIS THE TURNOVER. 3.4 IT IS SETTLED LEGAL POSITION THAT BOTH THE QUAN TUM AND THE PENALTY PROCEEDINGS ARE INDEPENDENT OF EACH OTHER A ND THE ADDITION/DISALLOWANCE MADE IN THE ASSESSMENT ORDER DOES NOT AUTOMATICALLY RESULT IN LEVY OF PENALTY. A FINDING IN THE ASSESSMENT ORDER IS RELEVANT BUT NOT CONCLUSIVE FOR LEVYING PENALTY U/S. 271(1)(C). IN THE PENALTY PROCEEDINGS, THE WHOLE MATTER HAS TO BE SEEN FROM A DIFFERENT PERSPECTIVE IRRESPECTIVE OF THE FACT THAT THE ADDITION HAS BEEN CONFIRMED IN QU ANTUM APPEAL OR THAT THE ASSESSEE CHOSE NOT TO FILE AN APPEAL. D URING THE PENALTY PROCEEDINGS, THE ASSESSEE IS AFFORDED AN OP PORTUNITY TO SHOW CAUSE AS TO WHY THE PENALTY SHOULD BE NOT IMPO SED WITH REFERENCE TO THE ADDITION MADE OR CONFIRMED IN THE QUANTUM PROCEEDINGS. IF THE ASSESSEE SUCCEEDS IN EXPLAINING HIS CASE, THEN NO PENALTY CAN FOLLOW AND VICE VERSA. IT IS, THEREF ORE, CLEAR THAT THE CONFIRMATION OF THE ADDITION BY THE CIT(A) IN QUANT UM APPEAL PROCEEDINGS OR THE FACT THAT THE QUANTUM ORDER WAS NOT APPEALED AGAINST, DO NOT MEAN THAT THE PENALTY SHOULD BE AUT OMATICALLY LEVIED. 3.5 IT IS NOW EXAMINED WHETHER THE IMPUGNED ADDITIO N DISALLOWANCE MADE IN THE ASSESSMENT ORDER IN THE CA SE OF THE APPELLANT ATTRACTS PENAL PROVISIONS U/S. 271(1)(C) OF THE I.T. ACT. THE SCHEME OF SEC. 271(1)(C) VISUALIZES IMPOSITION OF PENALTY WHEN THE ASSESSEE HAS CONCEALED INCOME OR WHEN THE ASSES SEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. IN ADDI TION TO THESE TWO SITUATIONS, PENALTY CAN ALSO BE IMPOSED, INTER ALIA, WHEN ASSESSEE IS DEEMED TO HAVE CONCEALED PARTICULARS OF INCOME UNDER EXPLANATION 1 TO SEC. 271(1)(C). A DEEMING FI CTION UNDER EXPLANATION 1 TO SEC. 271(1)(C) ENVISAGES TWO SITUA TIONS-(A) FIRST, WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPU TATION OF TOTAL INCOME UNDER THE PROVISIONS OF THE .ACT, THE ASSESS EE FAILS TO OFFER AN EXPLANATION OR THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE FALSE BY THE AO OR THE CIT(A); AND, (B) SECOND, WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPU TATION OF TOTAL INCOME UNDER THE PROVISIONS OF THIS ACT, THE ASSESS EE IS NOT ABLE TO SUBSTANTIATE THE EXPLANATION AND THE ASSESSEE FA ILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY THE ASSESSEE. THUS, THE PENA LTY UNDER SEC.271(1)(C) IS A PENALTY FOR CONCEALMENT OF INCOM E OR FOR FURNISHING OF INACCURATE PARTICULARS, OR, UNDER THE EXTENDED DEFINITION BY THE VIRTUE OF EXPLANATION 1 TO S.27 1(1)(C), FOR A DEEMED CONCEALMENT OF INCOME. 3.6 THE FACTS OF THE PRESENT CASE ARE NOW TESTED VI S-A-VIS THE 4 ABOVE LEGAL POSITION TO EXAMINE WHETHER THE PRESE NT CASE IS COVERED UNDER THE MAIN PART OF THE PROVISIONS UNDER THE DEEMING PROVISIONS OF EXPLANATION 1 OF SECTION 271(1)(C) OR NOT. IN THE CASE OF THE APPELLANT, AS ALREADY MENTIONED, THE PENALTY HAS BEEN IMPOSED BY THE ASSESSING OFFICER IN RESPECT OF WHAT , IN HER VIEW, AMOUNTS TO INCORRECT DISCLOSURE OF BUSINESS PROFITS SHOWN IN THE RETURNS OF INCOME. THIS VIEW IS NOT SUPPORTED WITH CONVINCING CORROBORATIVE EVIDENCES IN THE FORM OF RECEIPTS INT O THE BANK ACCOUNTS OF THE APPELLANT, WHICH HAVE NOT BEEN DISC LOSED IN THE RETURN OF INCOME OR BY ANY OTHER' INQUIRIES MADE IN THIS REGARD BY THE ASSESSING OFFICER, SHOWING THAT THE APPELLANT H AS FURNISHED ANY WRONG OR FALSE PARTICULARS. THE NECESSARY PRECO NDITION FOR IMPOSITION OF PENALTY UNDER THE MAIN 'PROVISIONS OF SEC. 271(1)(C) IS THAT THE A.O. SHOULD SATISFY HIMSELF THAT THE AP PELLANT CONCEALED ITS INCOME OR FURNISHED INACCURATE PARTIC ULARS OF INCOME. THE EXPRESSION 'CONCEALMENT OF INCOME' HAS NOT BEEN DEFINED IN THE ACT, BUT THE NATURAL MEANING OF THE EXPRESSION 'CONCEALMENT' IS 'TO KEEP FROM BEING SEEN, FOUND, O BSERVED, OR DISCOVERED'. IT WOULD, THEREFORE, FOLLOW THAT THE E XPRESSION CONCEALMENT OF INCOME, IN ITS NATURAL SENSE ARID GR AMMATICAL MEANING, IMPLIES AN INCOME IS BEING HIDDEN, CAMOUFL AGED OR COVERED UP SO THAT IT CANNOT BE SEEN, FOUND, OBSERV ED OR DISCOVERED. SIMILARLY, THE EXPRESSION 'FURNISHING O F INACCURATE PARTICULARS OF INCOME' HAS ALSO NOT BEEN DEFINED IN THE ACT. IN THE CONTEXT OF 'FURNISHING OF INACCURATE PARTICULARS', THE EXPRESSION 'INACCURATE' REFERS TO 'NOT IN CONFORMITY WITH THE FACT OR TRUTH'. THE EXPRESSION 'PARTICULARS' REFERS TO 'FACTS, DETAILS, SPECIFICS, OR INFORMATION ABOUT SOMEONE OR SOMETHING'. THEREFORE, THE PLAIN MEANING OF THE EXPRESSION 'FURNISHING OF INACCURATE PARTICULARS OF INCOME IMPLIES FURNISHING OF DETAILS OR INFORMATION ABOUT INCOME WHICH ARE NOT IN CONFORMITY WITH THE FACTS OR TRUTH . 3.6.1 IN THE PRESENT 'CASE, THE APPELLANT HAD MADE DISCLOSURE OF CERTAIN PARTICULARS OF HIS TURNOVER, PURCHASES, DET AILS OF EXPENSES CLAIMED AND INCOME EARNED THEREON IN THE ORIGINAL R ETURN OF INCOME FILED FOR THE IMPUGNED ASSESSMENT YEAR. THES E FIGURES OF PURCHASES AND OTHER EXPENSES, TURNOVER ETC. HAVE NO T BEEN DISTURBED BY THE ASSESSING OFFICER IN THE ASSESSMEN T ORDER FRAMED. THERE IS NO FINDING THAT THE INFORMATION AV AILABLE WITH THE ASSESSING OFFICER IN THE FORM OF CASH DEPOSITS IN BANK ARE UNDISCLOSED VIS-A-VIS THE SALES OR CERTAIN RECEIPTS IN THE BANK ARE NOT REFLECTED. NEITHER IS THERE ANY FINDING THAT TH E PURCHASES ARE NOT GENUINE OR THEY ARE INFLATED. RATHER, THE GP HA S BEEN ESTIMATED ON THE TURNOVER DISCLOSED BY THE APPELLAN T. THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON R ECORD TO ESTABLISH THE MALAFIDE INTENTION OF THE APPELLANT T O EVADE TAXES BY WAY OF CONCEALING INCOME OR FURNISHING INACCURAT E PARTICULARS. THEREFORE IT CANNOT BE SAID THAT THERE IS CONCLUSIV E PROOF THAT THE APPELLANT CONCEALED PARTICULARS OF HIS INCOME OR FU RNISHED IN ACCURATE PARTICULARS IN THE RETURN OF INCOME FILED. PENALTY PROCEEDINGS, BEING IN THE NATURE OF QUASI- CRIMINAL PROCEEDING, THERE IS A DUTY CAST ON THE ASSESSING OFFICER TO ES TABLISH THE GUILT OF THE ASSESSEE IN CONCEALING THE INCOME OR FURNISH ING OF INACCUR.ATE PARTICULARS OF SUCH INCOME. THEREFORE, KEEPING IN VIEW 5 THESE FACTS, IT CAN BE CONCLUDED THAT THE APPELLANT IS NOT COVERED UNDER THE MAIN PROVISION OF SEC.271(1)(C). 3.6.2 NOW THE CASE OF THE APPELLANT IS EXAMINED UND ER THE DEEMING PROVISIONS OF EXPLANATION 1 TO SECTION 271( 1)(C). THIS DEEMING FICTION, AS MENTIONED EARLIER IN THIS ORDER , COMES INTO PLAY WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPU TATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, (I) WHEN THE ASSESSEE FAILS TO PROVIDE AN EXPLANATION, (II) WHEN THE .ASS ESSEE PROVIDES AN EXPLANATION WHICH IS FOUND TO BE FALSE, AND (III) W HEN THE ASSESSEE PROVIDES AN EXPLANATION WHICH HE FAILS TO SUBSTANTI ATE AND HE FAILS TO PROVE THAT THE EXPLANATION WAS BONA FIDE A ND THAT ALL THE FACTS NECESSARY FOR THE SAME AND MATERIAL FOR COMPU TATION OF INCOME HAVE BEEN DULY DISCLOSED BY THE ASSESSEE. 3.6.3 IN THE INSTANT CASE, THE ASSESSMENT HAS BEEN COMPLETED U/S 144 OF THE LT. ACT, WITHOUT ANY REPRESENTATION FROM THE SIDE OF THE APPELLANT. THE APPELLANT HAS ALSO NOT FURNISHED ANY EXPLANATION DURING PENALTY PROCEEDING, AS IS EVIDENT FROM THE P ENALTY ORDER. AS ALREADY DISCUSSED HEREIN BEFORE, THE ASSESSING O FFICER HAS NOT DOUBTED THE TURNOVER OR SALES ACHIEVED BY THE APPEL LANT NOR HAS HE FOUND THAT EXCESSIVE CLAIM ,OF EXPENSES OR ANY N ON-GENUINE EXPENSE WAS MADE. THE ADDITION HAS BEEN MADE BASED ON, WHAT IN THE ASSESSING OFFICER'S VIEW, SHOULD HAVE BEEN T HE CORRECT GROSS PROFIT, NAMELY 12% AS AGAINST 2.2% SHOWED BY THE AP PELLANT. THEREFORE, IT IS' CLEARLY REVEALED FROM THE SEQUENC E OF EVENTS THAT NEITHER OF THE CONDITIONS SPECIFIED IN (I), (II) & (III) OF EXPLANATION 1 TO SECTION 271(1)(C) ARE SATISFIED. THEREFORE IT IS DIFFICULT TO SUPPORT THE ASSESSING OFFICERS VIEW THAT EXPLANATION 1 TO SECTION 271(1)(C) IS ATTRACTED. THEREAFTER LD.CIT(A) AFTER REFERRING TO VARIOUS DECISIONS CIT ED THEREIN DELETED THE PENALTY BY HOLDING AS UNDER : 3.6.7 THE DELHI HIGH .COURT DECISION IN THE CASE OF CIT VS AERO TRADERS PVT. LTD. REPORTED IN 322 ITR 316 ALSO SUPP ORTS THE VIEW THAT THE FINDINGS IN THE ASSESSMENT PROCEEDINGS ARI SING FROM ESTIMATION OF ,INCOME OF AN ASSESSEE ARE NOT GOOD A ND CONCLUSIVE SO FAR AS PENALTY PROCEEDINGS AS CONCERNED. AS HELD BY THE HON'BLE APEX COURT IN THE' CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT. LTD (322 ITR 156), WHEN THERE IS NO EVIDENCE A ND MATERIAL TO SHOW THAT THE ASSESSEE HAS DELIBERATELY FURNISHED I NACCURATE OR ERRONEOUS AND FALSE PARTICULARS IN HIS RETURN OF INCOME NOR WAS THERE WAS ANY MALAFIDE INTENTION ON HIS PART SO AS TO MAKE HIM LIABLE FOR PENALTY, THEN THAT WOULD NOT CONSTITUTE A DELIBERATE ACT OF CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. THE SUPREME COURT IN THE CAS E OF CIT VS KHODAY ESWARSA AND SONS (83 ITR 369) ALSO HELD THAT THE PENALTY PROCEEDINGS, BEING PENAL IN CHARACTER, THE REVENUE HAS TO ESTABLISH THAT THE ADDITION MADE UNDISPUTEDLY CONST ITUTES INCOME OF THE ASSESSEE. APART FROM FALSITY OF THE EXPLANAT ION GIVEN BY THE ASSESSEE, THE DEPARTMENT MUST, BEFORE LEVYING PENAL TY, HAVE COGENT MATERIAL OR EVIDENCE FROM WHICH IT COULD BE INFERRED THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME OR HAD DELIBERATELY FURNISHED INACCURATE PARTICULARS IN RESPECT OF THE SAME. IN THE 6 PRESENT CASE, THERE IS NO FINDING THAT THE PARTICUL ARS OF INCOME ARE INACCURATE OR FALSE AND HENCE, IN MY HUMBLE OPINION , IT CANNOT BE ESTABLISHED THAT THE ASSESSEE HAS CONSCIOUSLY CONC EALED PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS. 3.6.8 IN THE VIEW OF THE DISCUSSIONS IN THE PRECED ING PARAS, IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED I NVOKING THE PENALTY PROVISIONS WITHIN THE MEANING OF EXPLANATIO N 1 TO SEC. 271(1) (C). CONSEQUENTLY, THE PENALTY OF RS. 15,42, 000/- IS DIRECTED TO BE DELETED. GROUND NO. 1 TO 5 ARE ALLOWED . 3. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE ORDER OF COMMISSIONER OF INCOME-TAX (APP EALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HA S ERRED IN DELETING THE PENALTY LEVIED U/S 271(1)(C) O THE INCOME-TAX ACT BY THE ASSESSING OFFICER WHEN IT IS CLEAR THAT THE ASSESSEE HAS DELIBERATELY CONCEALED PARTICULARS OF INCOME. 3. FOR THIS AND SUCH OTHER REASONS AS MAY BE URG ED AT THE TIME OF HEARING, THE ORDER OF LD.CIT(A) MAY BE VACATED A ND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHER. 5. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED ON HIS BEHALF. WE THEREFORE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSESSEE AFTER HEARING THE LD.D.R. AND ON THE BASIS OF MATERIAL ON RECORD. 6. BEFORE US, LD DR TOOK US THROUGH THE ORDER OF AO AND SUPPORTED HIS ORDER. 7 . WE HAVE HEARD THE LD.D.R. AND PERUSED THE MATERIAL ON 7 RECORD. THE ISSUE IN THE PRESENT CASE I S WITH RESPECT TO LEVY OF PENALTY U/S 271(1)(C) ON THE ESTIMATION OF GROSS PROFIT. WE FIND THAT LD.CIT(A) BY A VERY DETAILED AND WELL-REASONED ORDER HAS NOTED THAT THE ADDITION ON WHICH IMPUGNED PENALTY HAS B EEN LEVIED WAS MADE BY ESTIMATING THE GROSS PROFIT AT 12% AS AGAINST 2.2% SHOWN BY THE ASSESSEE. SHE HAS FURTHER GIVEN A FIND ING THAT AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO ES TABLISH THE MALAFIDE INTENTION ON THE ASSESSEE TO EVADE TAXES BY CON CEALING INCOME OR FURNISHING INACCURATE PARTICULARS. SHE HAS FURTH ER HELD THAT NONE OF THE CONDITIONS SPECIFIED IN CLAUSE (I), (II) AND (III) OF SEC.271(1)(C) OF THE ACT WERE SATISFIED IN THE PRESENT CASE . BEFORE US, REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD.CIT(A) NOR HAS POINTED OUT AN Y FALLACY IN THE FINDINGS OF LD.CIT(A). IN VIEW OF THE AFORESAID FAC TS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD.CIT(A) AND THUS THE GROUNDS OF REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 7 TH DAY OF JULY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; ! DATED : 7 TH JULY, 2017. YAMINI 8 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. THE CIT(A)-4, PUNE. THE PR.CIT-3, PUNE. #$% &&'(,* '(, / DR, ITAT, B PUNE; %,-./ GUARD FILE. / BY ORDER, // //// // TRUE COP // /// TRUE // //COPY // TRUE COPY // // / 0123 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.