2012 (4) TMI 606

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.... 2. That the Ld. Assessing Officer is grossly erred in law and on facts in levying the penalty of Rs. 117923/- without any basis or adverse material on the file. Hence merit deletion. 3. The income has been estimated while applying flat. The Ld. Assessing Officer erred in levying penalty on estimated income while ignoring long past history of the case and jurisdictional Appellate judgments. 4. That the appellant craves leave to add, amend and modify any other grounds of appeal before the appeal is heard and disposed off. 3. Ground Nos. 1 and 4 of the present appeal are purely of general nature and hence needs no separate adjudication, hence, dismissed. 4. The assessee in ground Nos.. 2 & 3 challenged the levy ....

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.... before the CIT(A), that the penalty cannot be levied u/s 271(1) (c) of the Act, in respect of the addition made by applying the higher flat rate vis-à-vis the rate applied by the assessee. In a nutshell, it was contended by the Ld. 'AR' before the CIT(A), that in case of estimate based addition, it is a case of change of opinion and, hence, not a fit case of levy of penalty u/s 271(1) (c) of the Act. 9. The Ld. CIT(A), observed while confirming the order of penalty, that the assessee has deliberately not maintained books of account and, hence, showed its income by applying certain flat rate. The Ld. CIT(A), concluded that such approach of the assessee cannot be a bonafide one. Ld. CIT(A), was of the opinion that adverse inference....

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.... the Assessing Officer. The Assessing Officer substituted his own version and made certain additions in the already disclosed income by the assessee, in his return of income, purely on the basis of estimation. Therefore, estimation made by the Assessing Officer cannot be a superior one vis a vis the estimation made by the assessee, in disclosing the income, in his return of income. One fails to understand how the statutory conditions of section 271(1) (c) of the Act - "has concealed particulars of income or furnished inaccurate particulars of such income" including the explanation thereunder are satisfied in the present case. It is a case, where, the penalty has been levied and upheld without application of mind, to the facts of the case. T....