2021 (1) TMI 198

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.... we proceed to dispose the same vide this common order. 3. For the sake of convenience and clarity, the facts relevant to the appeal in ITA No.3089/PUN/2017 for assessment year 2007-08 are stated herein. 4. The assessee raised the following grounds of appeal :- "The learned Commissioner of Income Tax (Appeals)-1, Kolhapur by his order passed under section 250 dated 26-10-2017 received on 07-11-2017 in case of your appellant M/s. Samir M. Mohite, Kolhapur has erred in both on facts and in law: - A) Penalty levied under section 271(1)(c) of Income Tax Act, 1961 1. That on the facts, circumstances and legal position of the case, CIT(Appeals) and AO both have erred in levying penalty under section 271(1)(c) of R....

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....disparity between the assessed income and returned income is on account of treating the gross receipts of Rs. 26,48,586/- received from Soktas India Pvt. Ltd. income without allowing the claim of expenditure of Rs. 25,73,594/-. During the assessment proceedings, the Income Tax Officer, Ward-1(4), Kolhapur ("Assessing Officer" for short) gave a finding that the receipts from Soktas India Pvt. Ltd. are not in the nature of contract receipts but in the nature of commission/brokerage or service charges in connection with the acquisition of land at MIDC, Kolhapur. It was contended before the Assessing Officer that the income was offered under the provisions of section 44AD of the Act and therefore, no books of accounts were maintained by the app....

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....ying the penalty u/s 271(1)(c) of the Act rejecting the argument that the disallowance does not entail levy of penalty, in case, when the income assessed on estimated basis the penalty cannot be levied. 9. Hence, the appellant is before us in the present appeal and the case was heard in absence of assessee. Before us, the assessee had filed letter stating that the issue may be decided based on the written submission filed before us. In the said written submission, it was requested that this Tribunal in quantum appeal vide order dated 31.12.2012 (supra) held that the entire gross receipts should not be assessed to tax but only 60% of the gross receipts, which suggests that the income is finally assessed on estimated basis, when the income....

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....is settled position of law that in case where the income is assessed on estimated basis levy of penalty u/s 271(1)(c) of the Act cannot be upheld. Reliance in this regard can be placed on the following decisions of the Hon'ble High Courts :- (i) CIT vs. Aero Traders Pvt. Ltd., 322 ITR 316 (Del); (ii) CIT vs. Parkash Industries Ltd., 322 ITR 622 (P&H); (iii) CIT vs. Vijay Kumar Jain, 325 ITR 378 (Chhattisgarh); and, (iv) CIT vs. S S P Ltd, 328 ITR 643 (P&H). 12. In view of this settled position of law, we are of the considered opinion that the levy of penalty in the facts of the present case cannot be sustained. 13. Since we have quashed the levy of penalty for the reason that the penalty cannot be l....