M/s. Chourasia & Sons, Siliguri v. ITO, Ward - 1(1), Siliguri

ITA 1924/KOL/2009 | 2003-2004
Pronouncement Date: 29-07-2011

Appeal Details

RSA Number 192423514 RSA 2009
Assessee PAN AABFC8262H
Bench Kolkata
Appeal Number ITA 1924/KOL/2009
Duration Of Justice 1 year(s) 8 month(s) 11 day(s)
Appellant M/s. Chourasia & Sons, Siliguri
Respondent ITO, Ward - 1(1), Siliguri
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 29-07-2011
Date Of Final Hearing 23-06-2010
Next Hearing Date 23-06-2010
Assessment Year 2003-2004
Appeal Filed On 17-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE /AND . ! . '# ) [BEFORE HONBLE SRI MAHAVIR SINGH JM & HONBLE SHR I C. D. RAO AM] $ $ $ $ / I.T.A NOS. 1924 & 1925/KOL/2009 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR: 2003-04 M/S. CHOURASIA & SONS VS. INCOME-TAX OFFICER W D-1(1) SILIGURI (PAN-AABFC 8262 H) (*+ /APPELLANT ) ( -*+/ RESPONDENT ) FOR THE APPELLANT: SHRI S. M. SURANA FOR THE RESPONDENT: SHRI M. BHATTACHARYA '. / ORDER PER MAHAVIR SINGH JM ( ) THESE APPEALS BY ASSESSEE ARE ARISING OUT OF ORDERS OF CIT(A) SILIGURI IN APPEAL NO.40&33/CIT(A)/SLG/08-09 DATED 30.07.2009 AND 31.0 7.2009 RESPECTIVELY. ASSESSMENT WAS FRAMED BY ITO WARD-1(1) KOLKATA U/S. 143(3)/254 O F THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2003- 04 VIDE HIS ORDER DATED 26.11.2008. THE PENALTY IN DISPUTE WAS ALSO LEVIED BY ITO WARD-1(1 ) KOLKATA U/S 271(1)(C) OF THE ACT VIDE HIS SEPARATE ORDER DATED 03.01.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IN IT A NO. 1924/K/2009 IS AGAINST THE ORDER OF CIT(A) CONFIRMING ADDITIONS MADE BY ASSESSING OF FICER ON ACCOUNT OF EXCESS STOCK OF BEETLE NUTS KHAINI KIMAM AND MENTHOL AMOUNTING TO RS.2 6 4 897/- 1 06 825/- 36 400/- AND RS.1 26 075/- RESPECTIVELY. FOR THIS ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE GROUND NOS. 2 3 AND 4: 2. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION ON ACCOUNT OF EXCESS STOCK OF BETEL NUTS KHAINI KIMAM AND MENTHOL AMOUNTING TO RS.2 64 897/- 1 06 825/- 36 400/- AND RS.1 26 075/- RESPECTIVELY WHEN NO OPP ORTUNITY TO CROSS EXAMINE THE WITNESS WAS ALLOWED INSPITE OF REQUEST AND THEREFOR E THE ORDER PASSED BY THE AUTHORITIES BELOW IS VITIATED. 3. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF EXCESS STOCK WITHOUT READING OUT THE AND EXPLAINING THE DEPOSITION TO SR I CHOURASIA AND TAKING COERCIVE MEASURES TO MOULD THE DEPOSITION TAKEN IN THEIR FAV OUR. 4. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING AN A DDITION OF RS.2 64 897/- FOR SHORTAGE IN AN ASSESSMENT OF BETEL NUT WHEN THE ADDITION IN THE ORIGINAL ASSESSMENT WAS 2 ITA 1924-1925/K/2009 M/S. CHOWRASIA & SONS A.Y.03-04 RS.89 027/- WHICH WAS SET ASIDE BY THE LD. ITAT AND THE ASSESEE CANNOT BE PUT IN A POSITION WORST TO THE EARLIER ASSESSMENT IN AN ORDE R U/S.143(3)/254. 3. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2003-04 ON 31.3.2004 AND THE AS SESSEES CASE WAS SELECTED FOR SCRUTINY AS THERE WAS SURVEY CONDUCTED IN ASSESSEES CASE U/S. 133A OF THE ACT ON 29.5.2002. THE ASSESSEE IS A MANUFACTURER OF PAN MASALA AND TAMANYA GUTHKA. IT MAINTAINS LEDGER CASH BOOK STOCK REGISTER BANK STATEMENT PURCHASE BILL SALE MEMOS AND OTHER BILLS AND VOUCHERS RELATED TO DIFFERENT EXPENSES AND ALSO PRODUCED AND VERIFIED B Y ASSESSING OFFICER DURING THE COURSE OF ORIGINAL ASSESSMENT COMPLETED U/S. 143(3) OF THE AC T VIDE ORDER DATED 30.3.2006. DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS ASSESSIN G OFFICER WORKED OUT EXCESS STOCK AND MADE ADDITION OF THE FOLLOWING: (I) BEETLE NUT RS.89 027/- (II) POWDER (FLAVOUR) RS.15 244/- (III) KATHA RS.53 168/- (IV) MENTHOL RS.1 26 075/- (V) KIMAM RS.36 400/- (VI) JARDA RS.79 727/- (VII) KHAINI RS.1 06 825/- (VIII) TAMANNA READY MADE KHAINI RS.4 800/- TOTAL EXCESS STOCK RS.5 11 266/- THE ASSESSEE PREFERRED APPEAL AGAINST ORIGINAL ASSE SSMENT ORDER BEFORE CIT(A) WHO IN RESPECT TO BEETLE NUTS CONFIRMED THE ADDITION PARTLY DIRECT ING ASSESSING OFFICER TO CONSIDER THE RATE PER KG. OF BEETLE NUTS AT RS.41.66 + RS.4.17. SIMILARL Y THE ADDITION ON ACCOUNT OF KHAINI KIMAN AND MENTHOL WAS CONFIRMED AS IT IS. AGGRIEVED ASS ESSEE PREFERRED APPEAL BEFORE TRIBUNAL. THE TRIBUNAL REPRODUCED THE GROUND NOS. 2 5 6 AND 7 IN RESPECT TO THESE FOUR ADDITIONS AS UNDER: 2. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.81 603/- AS EXCESS STOCK OF BETEL NUTS DULY EXPLAINED BY THE ASSESSEE AND FACTS OF THE CASE. 5. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1 06 825/- ON ACCOUNT OF EXCESS STOCK OF KHAINE DULY EXPLAINED BY THE ASS ESSEE AND FACTS AND CIRCUMSTANCES OF THE CASE. 6. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.36 400/- AS EXCESS STOCK OF KIMAM DULY EXPLAINED BY THE APPELLANT AND FACTS AND CIRCUMSTANCES OF THE CASE. 7. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1 26 075/- ON ACCOUNT OF EXCESS STOCK OF MENTHOL DULY EXPLAINED BY THE AP PELLANT AND FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE TRIBUNAL DISCUSSING FACTS IN PARA 8 SET ASID E THE ISSUE OF EXCESS STOCK ON THESE ACCOUNTS VIDE PARA 9 AS UNDER: 3 ITA 1924-1925/K/2009 M/S. CHOWRASIA & SONS A.Y.03-04 8. GROUNDS NO. 2 5 6 & 7 ARE WITH REGARD TO EXC ESS STOCK FOUND AT THE TIME OF SURVEY. IT IS CONTENDED BY THE LEARNED COUNSEL THA T FROM THE SAME PREMISES ANOTHER PROPRIETORSHIP FIRM M/S. KAILASH TRADING CO. (PROPR IETOR IS SRI KAILASHNATH CHAURASIA) IS ALSO CARRYING ON THE BUSINESS. DURIN G THE COURSE OF SURVEY OFFICERS CONSIDERED THE STOCK OF KAILASH TRADING CO. ALSO AN D PREPARED THE STOCK INVENTORY IN THE HANDS OF THE ASSESEE. DURING THE COURSE OF AS SESSMENT PROCEEDINGS THE ASSESSEE EXPLAINED THAT THAT STOCK BELONGED TO M/S. KAILASH TRADING CO. HOWEVER THE A.O. DID NOT ACCEPT THE SAME WITHOUT GIVING ANY COGENT REASO N. THEREFORE THE ASSESSEE FILED THE AFFIDAVIT OF SRI KAILASHNATH CHAUASIA BEFORE THE CI T(A) AFFIRMING THE ABOVE FACTS. HOWEVER THE CIT(A) ALSO DID NOT CONSIDER THE SAME IN PROPER PERSPECTIVE. HE STATED THAT AFTER CONSIDERING THE STOCK OF KAILASH TRADING CO. THERE IS NO EXCESS STOCK AND THEREFORE THE ADDITION FOR EXCESS STOCK MADE BY TH E ASSESSING OFFICER REQUIRES TO BE DELETED. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMI TTED THAT THE AFFIDAVIT OF SRI KAILASHNATH CHAURASIA WAS NOT FILED BEFORE THE A.O. THEREFORE THE SAME HOULD NOT BE ACCEPTED. HOWEVER IF THE SAME IS ADMITTED THEN T HE MATTER SHOULD BE SET ASIDE TO THE FILE OF THE A.O. AND HE SHOULD BE GIVEN AN OPPORTUN ITY TO EXAMINE SRI KAILASHNATH CHAURASIA SO AS TO VERIFY THE CORRECTNESS OF THE CO NTENTS OF THE AFFIDAVIT. 9. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IN OUR OPINION IT WOULD MEET THE ENDS OF JUSTICE IF THE ORDERS OF THE AUTHORITIES BELOW ON THIS POINT ARE SET ASID E AND THE MATTER IS RESTORED BACK TO THE FILE OF THE A.O. FOR READJUDICATION. WE THERE FORE SET ASIDE THE ADDITIONS FOR EXCESS STOCK WHICH ARE CHALLENGED BEFORE US VIDE GROUNDS NO. 2 5 6 & 7 OF THE GROUNDS OF APPEAL TO THE FILE OF THE A.O. WE DIRECT THE ASSE SSEE TO PRODUCE THE AFFIDAVIT OF SRI KAILASHNATH CHAURASIA BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER IS AT LIBERTY TO MAKE NECESSARY VERIFICATION INCLUDING EX AMINATION OF SRI KAILASHNATH CHAURASIA IF HE SO DESIRES. THEREAFTER HE WILL RE SJUDICATE THE MATTER IN ACCORDANCE WITH LAW. 5. THE ASSESSING OFFICER TOOK UP ASSESSMENT PROCEED INGS AGAIN AND AFTER PROVIDING OPPORTUNITY TO ASSESSEE MADE ADDITION ON EXCESS ST OCK ON THE ABOVE ITEMS AS UNDER: (I) BEETLE NUT RS.2 64 897/- (II) KHAINI RS.1 06 825/- (III) KIMAN RS.36 400/- (IV) MENTHOL RS.1 26 075/- AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A) WHO IN SECOND ROUND CONFIRMED THESE ADDITIONS BY OBSERVING AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD AR AND ALSO PERUSED THE ASSESSMENT ORDER. I FIND NO MERIT IN THE ARGUMENT O F THE LD ARS. FIRST OF ALL SRI KAILASH NATH CHAURASIA WAS THE WITNESS OF THE ASSESSEE AND THE ASSESSEE FILED THE IMPUGNED AFFIDAVIT BEFORE THE CIT(A) STATED TO HAVE BEEN MAD E BY SRI CHAURASIA. THE AO HAS CROSS-EXAMINED HIM IN TERMS OF ITS CONTENT AND FOUN D THAT THE DECLARATION MADE IN THE AFFIDAVIT WAS FALSE AND INCORRECT. THE TEXT OF THE AFFIDAVIT AND HIS STATEMENT MADE IT CLEAR THAT IN THE AFFIDAVIT SRI CHAURASIA HAS GIVEN FALS E STATEMENT BUT ADMITTED THE FACT IN THE STATEMENT RECORDED U/S. 131 SECONDLY THERE IS NOTHING ON RECORD THAT THE STATE MENT WAS RECORDED IN ABSENCE OF THE ASSESSEE OR THEIR AR. THERE IS NOTHING ON RECORD TH AT THE AR APPROACHED THE AO TO CROSS- EXAMINE THEIR OWN WITNESS. THIRDLY SRI CHAURASIA MADE IT CLEAR THAT THERE WAS NO POSSIBILITY TO INCLUDE HIS STOCK IN THE INVENTORY OF STOCK OF THE ASSESSEE-FIRM AS STOC K OF THOSE TWO PARTIES WERE KEPT IN 4 ITA 1924-1925/K/2009 M/S. CHOWRASIA & SONS A.Y.03-04 SEPARATE DISTINCT PREMISES. THE QUESTION REPLY NOS. 8 & 9 OF THE STATEMENT OF SRI CHAURASIA RECORDED U/S. 131 MAY BE REFERRED TO. FOURTHLY SRI CHAURASIA ALSO STATED THAT HE WAS SEL LING THE BETTLE NUT AND PAN MASALA TO DIFFERENT SHOPS IN SILIGURI IN HIS CYCLE AND HE DID NOT MAINTAINED ANY BOOKS OF A/CS AND NOT EVEN KEPT ANY PURCHASE BILL SALE BILL AND STOC K REGISTER FOR HIS BUSINESS. FIFTHLY ON EXAMINATION OF THE COPY OF HIS BANK STA TEMENT IT WAS FOUND THAT DURING THE RELEVANT FINANCIAL YEAR HE HAD TOTAL TRANSACTIONS OF RS.5 57 960/- OF WHICH MOSTLY WAS IN CASH. THEREFORE SUCH A PETTY BUSINESSMEN CANNOT HA VE THE STOCK VALUED MORE THAN RS.5 00 000/- PLUS OTHER STOCK OWNED BY HIM WHICH W ERE NOT INVENTORISED. SIXTHLY THE ARGUMENT OF THE LD. ARS THAT A.O. ACTE D ON A NEGATIVE FINDING WAS NOT CORRECT. ACTUALLY THE LD. A.O. MADE THE ADDITION ON THE BASIS OF THE STATEMENT OF SRI CHAURASIA AND IN ABSENCE OF FURNISHING ANY EVIDENCE BY THE ASSESSEE CONTRARY TO THE FACT DISCLOSED BY SRI CHAURASIA IN HIS STATEMENT. THEREF ORE. THE CASE LAW CITED BY THE LD ARS ARE NOT RELEVANT. SEVENTHLY THE ARGUMENT OF THE AR THAT AO FAILED TO PROVE THAT THE EXCESS STOCK ACTUALLY BELONGED TO THE ASSESSEE FIRM WAS NOT CORRECT. ACTU ALLY THE ASSESSEE HAS TO PROVE THAT IT WAS THE STOCK OF SHRI CHOURASIA. IN VIEW OF THE ABOVE FACT IT IS HELD THAT THE LD A O HAS RIGHTLY MADE THE ADDITION. THE SAME IS CONFIRMED. HOWEVER THE QUANTITY OF BETTLE NUT TAKEN BY THE LD AO IN HIS ORDER IS NOT CORRECT. AS THE GENESIS OF THIS APPEAL HAS A DI RECT BEARING WITH THE ORIGINAL ASSESSMENT ORDER THE FIGURE OF EXCESS UNDISCLOSED BETTLE NUT TAKEN BY THE AO HAS TO BE TREATED AS UNDISCLOSED STOCK THE FACT DISCOVERED IN THE LIGHT OF THE STATEMENT OF SRI CHAURASIA THE AO MAY REOPEN THE ASSESSMENT TO ASSE SS THE VALUE OF THOSE 4000 KG OF BETTLE NUT ORIGINALLY TREATED AS STOCK OR SRI KAIL ASH NATH CHAURASIA. FROM THE STATEMENT OF SRI CHAURASIA IT IS CLEAR TH AT HE INITIALLY MADE A FALSE AFFIDAVIT AND PRODUCED THE SAME AS EVIDENCE. WITH THE HELP OF THAT AFFIDAVIT THE ASSESSEE MADE AN ATTEMPT TO EVADE TAX. THUS IT IS APPARENTLY A FIT CASE FOR PROSECUTION INCLUDING CHAURASIA FOR ABATEMENT CHARGES. THE AO MAY CONSIDE R THE SAME. AGGRIEVED ASSESSEE IS NOW IN APPEALS BEFORE US. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT DURING THE COURSE OF SURVEY ONE POCKET DIARY AND BUNCH OF LOOSE SHEETS WERE FOUND AND INVENTORISED AS CS-18 AND CS-19 ON 29.5.2 002 WHICH WERE DISOWN IN THE DEPOSITION ON THAT VERY DATE BUT FINALLY THE ASSESSEE BEFORE U S CONTENDED THAT SHRI KAILASH NATH CHAURASIA WHO IS PROPRIETOR OF KAILASH TRADING CO. AND FATHER OF PARTNERS OF M/S. CHAURASIA & SONS STAYING IN THE SAME RESIDENCE AND PORTION OF WHICH IS ALSO USED AS COMMON GODOWN FOR THEIR FAMILY BUSINESS THE STOCK OF GOOD ARE STACKED AND KEPT IN ASSORTED CONDITION. ACCORDINGLY IT IS NOT POSSIBLE TO FIND OUT EXACT STOCK WHETHER BELONG S TO KAILASH NATH CHAURASIA WHO IS PROPRIETOR OF KAILASH TRADING CO. DEALING IN THE SA ME PRODUCTS AND ALSO OF ASSESSEE M/S. CHAURASIA & SONS. WE FIND THAT DURING THE COURSE O F STOCK TAKING GOODS BELONGING TO KAILASH TRADING CO. AND CHAURASIA & SONS ARE MISTAKENLY INC LUDED IN EACH OTHERS AND THIS IS COMPLICATED BUT IN ANY CASE THERE IS DISCREPANCY IN STOCK AND THAT IS NOT PROVED BEYOND DOUBT. 5 ITA 1924-1925/K/2009 M/S. CHOWRASIA & SONS A.Y.03-04 HENCE WE ARE OF THE VIEW THAT THE ADDITION OF BEET LE NUTS CONFIRMED IN ORIGINAL ROUND AT RS.81 603/- SHOULD BE TAKEN AS UNACCOUNTED AND NOT ADDED BY AO IN SECOND ROUND AT RS.2 64 897/-. IN RESPECT TO OTHERS THAT IS UNACCO UNTED STOCK OF KHAINI KHIMAM AND MENTHOL WE ARE IN AGREEMENT WITH THE LD. COUNSEL THAT PEAK SHOULD BE ADDED IN CASE THE EXCESS STOCK IS ON DIFFERENT DATES. BUT TO THAT EFFECT NO EVIDENCE WAS PRODUCED BY ASSESSEE EITHER BEFORE AO OR BEFORE CIT(A). ACCORDINGLY WE CONFIRM THE FOLLOWI NG ADDITIONS: BEETLE NUT RS.81 603/- KHAINI RS.1 06 825/- KIMAM RS.36 400/- MENTHOL RS.1 26 075/- ACCORDINGLY THIS APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THE ABOVE ADDITIONS ARE ONLY CONFIRMED. 8. COMING TO ITA NO. 1925/K/2009 OF ASSESSEES APPE AL. 9. ON THE ABOVE FACTS THE AO LEVIED PENALTY U/S. 2 71(1)(C) OF THE ACT IN RESPECT TO ADDITION CONFIRMED BY CIT(A) OF RS. 1.90 LACS IN RE SPECT TO NOTINGS ON PAGE 3 OF DAIRY CS-18 FOUND AND INVENTORISED. WE FIND THAT THE TRIBUNAL HAS CONFIRMED THE ACTION OF CIT(A) CONFIRMING THE ADDITION OF RS. 1.90 LAC VIDE ORDER DATED 23.10.2007 VIDE PARA 4 AS UNDER: 4. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF B OTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IT IS UNDISPUTED THAT DU RING THE COURSE OF SURVEY A DIARY WAS FOUND AT THE ASSESSEES BUSINESS PREMISES. THOUGH T HE ASSESSEE HAS DENIED THE OWNERSHIP OF THE DIARY BUT HAS NOT EXPLAINED AS TO WHOM THE DIARY BELONGED AND HOW IT CAME INTO THE POSSESSION OF THE ASSESSEE. MOREOVER AS MENTIONED BY THE CIT(A) THE DIARY MENTIONS THE NAME OF THE PARTNER OF THE ASSES SEE- FIRM AS WELL AS THE RELATIVES OF THE PARTNER. IN VIEW OF THE TOTALITY OF THE ABOVE F ACTS WE AGREE WITH THE FINDING OF THE C.I.T(A) THAT THE CONTENTION OF THE ASSESSEE THAT T HE DIARY DOES NOT BELONG TO THE ASSESSEE CANNOT BE ACCEPTED. FROM THE PERUSAL OF THE NOTING IN THE DIARY WE FIND THAT THE FIGURES AS MENTIONED BY THE C.I.T .(A) IN HIS ORDER WHICH ARC REPRODUCED BY US ABOVE HAVE BEEN MENTIONED. IT IS TRUE THAT THE COMPLETE PARTIC ULARS OF THOSE FIGURES AND THE NATURE OF THOSE FIGURES HAVE NOT BEEN MENTIONED. BUT WHEN THE DIARY BELONGS TO THE ASSESSEE IT IS FOR THE ASSESSEE TO EXPLAIN THE NOTINGS IN SUCH DIA RY. IN THE ABSENCE OF ANY EXPLANATION THE INFERENCE HAS TO BE DRAWN ON THE BASIS OF MATER IAL AVAILABLE ON RECORD. THE INFERENCE DRAWN BY THE C.I.T.(A) IS QUITE FAIR AND REASONABLE. THE DIARY MENTIONS SOME RECEIPTS AND SOME PAYMENTS. THE A.O. HAS TREATED TH E RECEIPTS AS INCOME BUT HAS NOT TREATED THE PAYMENTS AS EXPENDITURE. WHEN IN THE AB SENCE OF ANY PARTICULARS THE RECEIPT WAS TREATED AS INCOME NATURALLY THE PAYMENT IS TO BE TREATED AS EXPENDITURE. IN VIEW OF THE ABOVE WE ENTIRELY AGREE WITH THE FINDING OF TH E C.I.T.(A) AND UPHOLD HIS ORDER ON THIS POINT. THUS THE REVENUES APPEAL S WELL AS GR OUND NO.4 OF THE ASSESSEES APPEAL ARE REJECTED. 10. WE FIND FROM THE FACTS OF THE CASE AND THE PENA LTY ORDER LEVYING PENALTY THAT PENALTY IS LEVIED JUST ON THE PREMISE THAT THE TRIBUNAL VIDE O RDER DATED 23.10.2007 IN ITA NO. 6 ITA 1924-1925/K/2009 M/S. CHOWRASIA & SONS A.Y.03-04 1244/K/2007 HAS CONFIRMED THE ADDITION BUT THERE IS NO IOTA OF DISCUSSION THAT HOW ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME IN SPITE OF THE FACT THAT ESTIMATED INCOME HAS BEEN CONFIRMED BY CIT(A) AT RS.1.90 LACS OUT OF TOTAL AD DITION MADE BY AO AT RS.35 21 200/-. WHETHER ON ESTIMATE PENALTY CAN BE LEVIED AND CONFI RMED IN OUR OPINION NO IT CANNOT BE. WE FIND FROM THE ABOVE FACTS THAT THE ASSESSING OFFICE R HAS MADE ADDITION ON ESTIMATE BASIS AND ON THAT PREMISES ONLY THE CIT(A) HAS DELETED THE ADDIT ION OF RS.35 21 200/- EXCEPT THIS ESTIMATED CONFIRMATION OF ADDITION OF RS.1.90 LACS. WE ARE O F THE VIEW THAT THIS IS JUST BASED ON ESTIMATES OF THE LOWER AUTHORITIES THAT THE ASSESSING OFFICER AS WELL AS CIT(A) HAS NOT DISCUSSED HOW THE INCOME IS CONCEALED. IN VIEW OF THE ABOVE FACTS AN D CIRCUMSTANCES OF THE CASE WE DELETE THE PENALTY AS THE SAME IS BASED ON ESTIMATE. 11. IN THE RESULT THE APPEAL BEING ITA NO. 1924/K2 009 IS PARTLY ALLOWED AND ITA NO. 1925/K/2009 IS ALLOWED. 12. ORDER PRONOUNCED IN OPEN COURT ON 29.7.11. SD/- SD/- . ! . '# (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( !# !# !# !#) )) ) DATED 29TH JULY 2011 /0 %12 3 JD.(SR.P.S.) '. 4 5''6- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT M/S. CHOURASIA & SONS BANKIM NAGAR SI LIGURI WEST BENGAL 2 -*+ / RESPONDENT- ITO WARD-1(1) SILIGURI. 3 . .% ( )/ THE CIT(A) SILIGURI 4. .% / CIT SILIGURI 5 . => % / DR KOLKATA BENCHES KOLKATA - / TRUE COPY '.%?/ BY ORDER 2 /ASSTT. REGISTRAR .