TaxTMI 
TaxTMI 
2018 (1) TMI 1102
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...., all dated 27.11.2015 relating to assessment years 2004-05, 2009-10 & 2009-10, respectively, against deletion of penalty levied under section 271(1)(c) of the Income Tax Act 1961 (in short the 'Act'). 2. This bunch of appeals filed by the Revenue on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. However, in order to adjudicate the issues, reference is being made to the facts in ITA No.165/PUN/2016, relating to assessment year 2004-05. 3. The assessee in ITA No.165/PUN/2016, relating to assessment year 2004-05 has raised the following grounds of appeal:- i) On the facts & in the circumstances of the case, the Learned CIT(A), Aurangabad has erred in deleting ....
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.... of manufacture of MS Ingots/Billets. In the assessment order passed under section 143(3) of the Act, the additions were made on account of estimated suppressed production of Ingots on the ground of variation in consumption of Electricity, vis-a-vis production. The CIT(A) confirmed the addition to the extent of gross profit @ 4% on the alleged suppressed production and sale out of books of account and unexplained investment in purchases. The Tribunal in ITA Nos.1432 & 1433/PN/2012 & ITA No.1632 & 1633/PN/2012, order dated 15.07.2015 deleted the additions made by the Assessing Officer and also the addition confirmed by the CIT(A) since, no evidence regarding unaccounted purchases or sales were found. However, before passing of the order of T....
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....-05 and 2009-10, order dated 17.11.2017 relying on the orders of the Tribunal in the case of ACIT Vs. Bhagyalaxmi Steel Alloys Pvt. in ITA Nos.990 & 991/PUN/2015 relating to assessment year 2011-12, order dated 18.10.2017 and ACIT Vs. Shree Om Rolling Mills Pvt. Ltd. in ITA No.993/PUN/2015, relating to assessment year 2009-10, order dated 10.11.2017, has held as under : "5. On hearing the Ld. DR for the Revenue and on after going through the orders of the income-tax authorities as well as the orders of the Tribunal in the cases of Bhagyalaxmi Steel Alloys Pvt. Ltd. and Shree Om Rolling Mills Pvt. Ltd. (supra), we are of the opinion that the issues raised in these appeals stand covered by the said decisions in favour of the assessee....
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.... as the written submissions of the assessee. The deletion of penalty u/s.271(1)(c) of the Act in respect of the estimated additions is a decided issue. There are many judgments to support the same. Therefore, in principle, we confirm the order of the CIT(A) and delete the penalty relatable to the estimated addition. 12. However, with regard to the penalty levied relating to the addition of Rs.76,48,922/- is concerned, we find, the revenue raised ground No.4 of its appeal. In the said ground No.4, the Revenue opines that penalty on the income relatable to the clandestine sale of unrecorded production needs to be confirmed, even if the related profits of Rs.76,48,922/- is estimated applying the flat rate of 4%. Ld. AR for the assesse....
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....erefore, it constitutes a reasonable presumption by the CIT(A). Therefore, the order of CIT(A) is fair and reasonable for the said reasons too. Accordingly, the grounds raised by the Revenue are dismissed. 6. From the above extracted portions of the order of the Tribunal, we find the Ld. DR's argument that the profit relatable to the unaccounted production constitutes concealed income and therefore the penalty is leviable stands rejected for the reason that the unaccounted sales as well as quantification of the related profits/concealed income/additional income has reduced in estimations despite the fact of unaccounted production and clandestine removal of the goods-cum-unaccounted sales the concealment is unsustainable in law, if ....