TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 1059
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....ngs of the CIT(A) in last para at page 11 - 12 of her appellate order are factually incorrect and untenable: "It is therefore clear from the above facts that the appellant had resorted to concealment in his' figure of inventory. The CIT(A) has stated in his order that there was discrepancy quantity issue in the inventory and the said matter was not reflected by the appellant either before the AO or before the CIT(A). It is apparent that had the survey not taken place, the concealment in the inventory resorted to by the appellant would not have been detected. The appellant had deliberately undervalued its inventory with an intention to conceal its income. The Appellant had not at all resorted to concealment in the figure of inventory as assumed Illy the authorities below. In fact, there was no discrepancy in the quantity and the Appellant had made detailed submissions to disprove the same which were ignored or not given due weight. 3. That the Appellant had not at all furnished inaccurate particulars of its income as assumed by the authorities below in their respective orders. 4. That the penalty as levied being wholly illegal and unjustified, deserve to be deleted. At an....
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....me. The dispute pertains to value of zip fastener mentioned at serial no. 26 and 47 and 154. The Assessing Officer had taken the value of the zip fasteners of Rs. 59.48 per meter. The assessee's contention was that this figure was on the higher side and not substantiated by any material or evidence. After examining the factual and aspects and evidence the CIT(A) valued the zip fasteners at Rs. 37.96 per meter. The said order has been upheld by the ITAT. The reasons and grounds mentioned by the two appellate authorities are not perverse. It is a reasonable view on the facts, material and evidence. The reasoning does not require interference in an appeal u/s. 260A of the Income Tax Act, 1961." 2.4 Taking into account the order of the appellate authorities, the assessee was served with a penalty notice u/s. 271(1)(c) dated 05.12.2011 by the AO. Keeping in view the facts of the case and the findings of the appellate authorities Rs. 13,92,958/- was treated as unexplained income of the asssessee. A penalty of Rs. 4,68,870/- was imposed u/s. 271(1)(c) of the I.T. Act, 1961 vide order dated 23.12.2011. 3. Against the above Penalty Order dated 23.12.2011 passed by the Assessing Officer, ....
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....ed that the addition had been made only on account of dispute pertaining to value of zip fasteners mentioned at serial No.26 and 47 and 154 as observed by the Hon'ble High Court and that there was no discrepancy with regard to the quantity of such items. He further argued that the impugned penalty order as well as the Ld. CIT(A)'s order under appeal also did not dispute the quantity of such items. 5.5 He further argued that the findings of the AO for levying penalty (last para of page 2 of impugned order) that the Assessee failed to offer an explanation and hence, Explanation 1 to section 271(1)(c) was squarely attracted and the addition made in the assessment order in computing the income of the assessee shall be deemed to represent the income in respect of which particulars have been concealed is factually incorrect and legally untenable as explanation alongwith documentary evidence had been filed to substantiate the value of the three items because of which the AO estimated the value of three items at Rs. 59.48 per mtr instead of Rs. 191.57 per mtr estimated by the survey team. Thereafter, the CIT(A) estimated the value of three items at Rs. 37.96 per mtr instead of Rs. 59.....
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....refer to page 86) Rs. 33.56 (refer to page 86) Rs. 59.48 Rs. 37.96 100 x 1000 = 1,00,000 (mtrs.) (refer to page 86) Rs. 27.97 (refer to page 86) Rs. 59.48 Rs. 37.96 12 x 200 = 2,400 (mtrs.) (refer to page 88) Rs. 3.32 (refer to page 88) Rs. 59.48 Rs. 37.96 8.1 We further find that the assessment order passed u/s 143(3) of the I.T. Act making the addition of Rs. 54,47,326/- passed by the AO on account of alleged difference in the valuation of three items of stock. 8.2 We further note that in Ld. CIT(A)'s order in quantum appeal vide para 1 at page 6 Ld. CIT(A) observed that there was discrepancy quantity-wise in the inventory and the said matter had not been refuted by the Assessee either before the AO or before the Ld. CIT(A) are factually incorrect. According to AR, the Ld. CIT(A) did not dispute the stock quantity and vide para 2.8 at page 6, the Ld. CIT(A) only estimated the value of three items @Rs.33.56 per mtr. instead Rs. 59.48 per mtr. as estimated by the AO. 8.3 We further note that against the Ld. CIT(A)'s order, both the Assessee and Revenue went in appeal and ITAT vide order dated 31/03/2011, upheld the order of CIT(A) by dismissing appeals of both....