2012 (3) TMI 568

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..../- has been dismissed. 3. Briefly stated the facts of the appeal are that Assessing Officer passed an order dated 4.6.2008 under Section 271(1)(c) of the Income Tax Act levying penalty of Rs. 10,87,752/- on the following alleged concealed particulars of income and thereby furnishing inaccurate particulars of income :- (i) Trading addition on application of N.P rate of 8% subject to further deduction on a/c of Interest & Remuneration paid to partners (6268288-4295681) Rs.19,72,607/- (ii) Unexplained cash credit u/s 68 in the name of three partners @ Rs. 3 lac each Rs. 9,00,000/- (iii) Interest disallowed on the unexplained Capital introduced by the partners Rs. 1,00,000/-   Total Rs. 29,72,607/-   4. Being aggrieved....

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....se of concealment and in third case benefit of doubt will go in favour of the assessee. The case of the assessee falls within third category where the alleged fact of introduction of capital is found to be not proved satisfactorily. Therefore, it is not a case of positive concealment and benefit of doubt goes in favour of the assessee. There is no dispute that trading addition was made on the basis of estimation because the results shown by the assessee was not found 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 estimated by the department depends upon the fac....

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....te particulars thereof on the part of the assessee to attract the penal provisions. In view of above discussion and keeping in mind the fact and circumstances of the present case, we are of the view that the ld. CIT (A) was justified in deleting the penalty in absence of positive evidence with the department that there was concealment of particulars of income or furnishing inaccurate particulars thereof on the part of the assessee towards the addition in question. The first appellate order on the issue 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 estimation cannot be said to be correct only, it can be incorrect ....