M S Apparels (P) Ltd, New Delhi v. ITO, New Delhi

ITA 2891/DEL/2009 | 1998-1999
Pronouncement Date: 31-10-2013 | Result: Allowed

Appeal Details

RSA Number 289120114 RSA 2009
Assessee PAN AAACM6803E
Bench Delhi
Appeal Number ITA 2891/DEL/2009
Duration Of Justice 4 year(s) 4 month(s) 15 day(s)
Appellant M S Apparels (P) Ltd, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 31-10-2013
Date Of Final Hearing 23-10-2013
Next Hearing Date 23-10-2013
Assessment Year 1998-1999
Appeal Filed On 15-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E: NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NO.2891/DEL/ 2009 (ASSESSMENT YEAR : 1998-99) M/S. M.S. APPARELS (P) LIMITED VS. ITO WARD 6 (1 ) 38 / 14 ARAM PARK GALI NO.4 NEW DELHI. KHUREJI DELHI 110 031. (PAN : AAACM6803E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.K. SRIVASTAVA CA RESPONDENT BY : MRS. REN UKA JAIN GUPTA SENIOR DR O R D E R PER B.C. MEENA ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM TH E ORDER OF THE CIT (APPEALS)-IX NEW DELHI DATED 02.03.2009. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF EXPOR T OF GARMENTS. THE RETURN OF INCOME WAS FILED ON 30.11.1998 DECLARING A LOSS OF RS.21 99 840/-. THE CURRENT YEAR LOSS WAS RS.13 67 073/- AND BROUGHT FORWARD LOSS WAS RS.8 32 754/-. THE RETURN OF INCOM E WAS ACCOMPANIED WITH THE AUDITED BALANCE SHEET AND TAX AUDIT REPORT U/S 44AB OF THE INCOME-TAX ACT 1961. ASSESSMENT U/S 143(3) WAS MAD E AT THE INCOME OF RS.12 52 667/- AND AFTER ADJUSTING THE BROUGHT FORW ARD LOSS THE TOTAL ITA NO.2891/DEL/2009 2 INCOME WAS DETERMINED AT RS.4 19 913/-. AS PER THE RECORDS THE BOOKS OF ACCOUNTS WERE PRODUCED AND EXAMINED ON TEST CHECK B ASIS BY THE ASSESSING OFFICER. BOOKS OF ACCOUNT AND PART OF THE VOUCHERS PRODUCED ON 22.03.2001 WERE IMPOUNDED U/S 131(1) OF THE ACT FUR FURTHER VERIFICATION. THE BOOKS OF ACCOUNTS WERE REJECTED U /S 145(3) OF THE ACT FOR NON-PRODUCTION OF COMPLETE BOOKS OF ACCOUNTS AN D VOUCHERS. AS PER THE AUDITORS REPORT THE ASSESSEE WAS MAINTAINING PROPER BOOKS OF ACCOUNT. THE ASSESSING OFFICER MADE AN ADDITION ON ACCOUNT OF ESTIMATING G.P. RATE AND ALSO ON ACCOUNT OF DISALLO WING CHARITY AND DONATIONS DEBITED IN PROFIT & LOSS ACCOUNT AND AD H OC DISALLOWANCE OF 5% OF EXPENSES OF REMAINING EXPENSES. THE ASSESSING OF FICER DID NOT ALLOW DEDUCTION U/S 80HHC OF THE ACT. THE ASSESSEE CLAIME D THAT IT WAS ENTITLED FOR DEDUCTION U/S 80HHC AS INCOME WAS ONLY FROM EXP ORTS. IN THE QUANTUM APPEAL THE CIT (A) DETERMINED THE G.P. RAT E @ 10%. THE ASSESSEE WAS DENIED 80G BENEFITS FOR CONTRIBUTION T O THE SCHOOL ON THE GROUND THAT SCHOOL DID NOT HAVE REGISTRATION U/S 12 AA AND EXEMPTION U/S 80-G OF THE INCOME-TAX ACT 1961. THE CIT (A) ALSO UPHELD THE 5% DISALLOWANCE OUT OF OTHER EXPENSES. THE ASSESSEES APPEAL AT THE ITAT LEVEL WAS DISMISSED FOR NON-PROSECUTION. THE ASSESS ING OFFICER LEVIED THE PENALTY U/S 271(1)(C) OF THE ACT OF RS.3 81 058 /-. THE CIT (A) CONFIRMED THE SAME BY HOLDING AS UNDER :- ITA NO.2891/DEL/2009 3 3.3 AFTER CONSIDERING THE FACTS ON RECORD MY CONS IDERED VIEW IS THAT THE AO HAS RIGHTLY LEVIED THE PENALTY FOR C ONCEALMENT. THE ONUS LIES ON THE APPELLANT TO SHOW AS TO WHETHER TH E BOOK RESULTS/TRADING RESULTS SHOWN BY IT ARE IN ORDER BU T DURING THE COURSE OF THE ASSESSMENT PROCEEDING AS WELL THE APP ELLATE PROCEEDINGS THE APPELLANT HAD FAILED TO SUBSTANTIA TE THAT THE TRADING RESULTS SHOWN BY IT ARE IN ORDER. THERE IS NO MENS REA TO BE PROVED BY THE DEPARTMENT AS IN THE CASE OF UOI V S. DHARMENDRA TEXTILE PROCESSORS (2008) 306.ITR 277 (S C) THE APEX COURT OVERRULED ITS EARLIER JUDGMENT IN THE CA SE OF DILIP N. SHROFF VS. JCIT (2008) 291 ITR 519 (SC) AND HELD TH AT 'IT IS OF SIGNIFICANCE TO NOTE THAT THE CONCEPTUAL AND CONTEX TUAL DIFFERENCE BETWEEN SECTION 271(1)(C) AND SECTION 276C OF THE I T ACT WAS LOST SIGHT OF IN DILIP SHROFFS CASE (SUPRA). THE E XPLANATIONS APPENDED TO SECTION 271 (1)(C) OF THE IT ACT ENTIRE LY INDICATES THE ELEMENT OF STRICT LIABILITY ON THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WHILE FILING RETU RN. THE JUDGMENT IN DILIP N. SHROFF'S CASE (SUPRA) HAS NOT CONSIDERED THE EFFECT AND RELEVANCE OF SECTION 276C OF THE I.T. AC T. OBJECT BEHIND ENACTMENT OF SECTION 271 (1) (C) READ WITH E XPLANATIONS INDICATE THAT THE SAID SECTION HAS BEEN ENACTED TO PROVIDE FOR A REMEDY FOR LOSS OF REVENUE. THE PENALTY UNDER THAT PROVISION IS A CIVIL LIABILITY. WILFUL CONCEALMENT IS NOT AN ESSEN TIAL INGREDIENT FOR ATTRACTING CIVIL LIABILITY AS IS THE CASE IN TH E MATTER OF PROSECUTION UNDER SECTION 276C OF THE I.T. ACT.' TH E AO HAS RIGHTLY HELD THAT FOR THE PURPOSE OF SECTION 271(1) (C) INCOME INCLUDES POSITIVE INCOME AND THE NEGATIVE INCOME AS RECENTLY IN THE CASE OF CIT VS. GOLDCOIN HEALTH FOOD P. LTD. (2 008) 304 ITR 308 (SC) THE APEX COURT AGAIN OVERRULED ITS DECISI ON IN THE CASE OF VIRTUAL SOFT SYSTEMS LTD. VS. CIT 289 ITR 83 (SC ) AND HELD THAT 'EVEN IN A CASE WHERE LOSS RETURNED WAS REDUCE D AND NO POSITIVE INCOME WAS ASSESSED A PENALTY UNDER SECTI ON 271(1)(C) WAS LEVIABLE. EXPLANATION 4 TO SECTION 271(1) (C) W AS CLARIFICATORY AND WAS RETROSPECTIVE IN OPERATION TH AT IS W.E.F 1 ST APRIL 1976.' IN VIEW OF THE ABOVE I CONFIRM THE AC TION OF THE AO TO LEVY PENALTY FOR CONCEALMENT ON THE APPELLANT AS THE APPELLANT HAD FAILED TO EXPLAIN AND JUSTIFY ITS TRADING RESUL TS WITH BOOKS OF ACCOUNTS AND OTHER SUPPORTING DOCUMENTS. 3. NOW THE ASSESSEE IS IN APPEAL BEFORE US BY TAKIN G THE FOLLOWING GROUNDS :- 1. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) FAILED TO APPRECIATE THE FACTS OF THE CASE AND ERRE D IN UPHOLDING THAT THE ASSESSING OFFICER HAD VALIDLY LEVIED PENAL TY. ITA NO.2891/DEL/2009 4 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN HOLDING THAT THE DECISION IN THE CASE UOI V DHARMEN DRA TEXTILE PROCESSORS (2008) 306 ITR 277(SC) IS APPLICABLE IN THE PRESENT CASE. 3. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS) FAILED TO CONSIDER THE EVIDENCES FILED BEFORE HIM A ND SUBMISSIONS MADE DURING PENALTY PROCEEDINGS. 4. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS) FAILED TO APPRECIATE THAT THE APPELLANT BEING AN EX PORTER WAS ENTITLED TO DEDUCTION U/S 80HHC OF THE INCOME-TAX A CT AND THAT AFTER GRANTING THE SAID DEDUCTION THE APPELLANTS W OULD HAVE NO INCOME LIABLE TO TAX. 5. THAT ON THE FACTS AND CIRCUMSTANCES ERRED IN HOL DING THAT THE APPELLANT IS NOT INTERESTED TO PURSUE THE APPEA L FILED BY IT. 4. WHILE PLEADING ON BEHALF OF THE ASSESSEE THE LD . AR SUBMITTED THAT ASSESSEE WAS ENGAGED IN THE EXPORT OF GARMENTS. THE ENTIRE TURN OVER COMPRISES OF EXPORT REALIZATION AND PROFITS ON THAT WERE ENTITLED FOR DEDUCTION U/S 80HHC OF THE ACT. THE RETURN OF INCOM E WAS FILED DECLARING LOSS FOR THE YEAR. LD. AR SUBMITTED THAT ASSESSEE WAS ENTITLED FOR DEDUCTION U/S 80HHC FOR ANY ENHANCEMENT OF THE INCOME BY THE ASSESSING OFFICER BUT HE HAS FAILED TO ALLOW THE SA ME. SIMILARLY THE CIT (A) HAS ALSO NOT ALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE REPORT OF ACCOUNTANT WAS NOT FILED ALONG WITH THE R ETURN OF INCOME. HE FURTHER SUBMITTED THAT IN ASSESSEES OWN CASE FOR T HE ASSESSMENT YEAR 1994-95 THE CIT (A) HAS DIRECTED THE ASSESSING OFF ICER TO ALLOW THE DEDUCTION U/S 80HHC WHEN IT WAS SIMPLY DENIED ON TH E GROUND THAT THE ITA NO.2891/DEL/2009 5 ACCOUNTANTS REPORT WAS NOT FILED ALONG WITH THE RE TURN OF INCOME. THEREFORE THERE WAS NO INTENTION OF THE ASSESSEE N OT TO FILE THE REPORT BEFORE THE ASSESSING OFFICER WHEN THERE WAS A LOSS AS PER THE RETURN. HE FURTHER SUBMITTED THAT NO COMPARABLE INSTANCES HAVE BEEN GIVEN FOR ESTIMATING THE GROSS PROFIT RATE. THE ASSESSING OFF ICERS ESTIMATION OF GROSS PROFIT WAS NOT SUPPORTED BY HIS SUCCESSOR IN HIS REMAND REPORT. THE BOOKS OF ACCOUNT WERE ALSO PRODUCED BEFORE THE SALE S-TAX AUTHORITIES WHERE NO DISCREPANCIES WERE FOUND AND ASSESSMENT WA S FINALIZED. COPY OF SALES-TAX ASSESSMENT IS FILED AT PAGES 68 69 O F THE PAPER BOOK. HE ALSO SUBMITTED THAT THREE DIFFERENT OFFICERS OF THE DEPARTMENT HAS ESTIMATED G.P. RATE DIFFERENTLY. THE ASSESSING OFFI CER CALCULATED G.P. RATE @ 8.64% AND CIT (A) ESTIMATED AT 10% WHICH ITSELF S HOW THAT IT WAS TOTALLY BASED ON ESTIMATES. SIMILARLY THE DISALLOW ANCES FOR THE AMOUNTS PAID TO THE SCHOOL ARE ALSO NOT JUSTIFIED AS NO REA SON WAS STATED FOR THE SAME. FOR FURTHER AD HOC DISALLOWANCE OF 5% FROM O THER EXPENSES IS ALSO COMPLETELY BASED ON AD HOC BASIS AND IT WAS ESTIMAT ED EVEN WHEN THERE WAS ESTIMATION OF THE GROSS PROFIT. IT HAS BEEN HEL D BY VARIOUS COURTS THAT ONCE THERE IS ESTIMATE OF PROFIT THEN NO OTHER DISA LLOWANCE FROM EXPENSES IS CALLED FOR. THESE FACTS CLEARLY SUGGEST THAT ASS ESSEE HAS NOT CONCEALED ANY INCOME FOR WHICH ASSESSEE COULD BE VISITED ANY PENALTY U/S 271(1)(C) OF THE ACT. THE ASSESSING OFFICER HAS ALSO NOT GIVE N ANY REASON WHY ASSESSEES BONA FIDE EXPLANATION IS NOT ACCEPTED. T HE ASSESSING OFFICER ITA NO.2891/DEL/2009 6 HAS ALSO NOT ADDRESSED THE ISSUE OF DEDUCTION U/S 8 0HHC WHERE THE ASSESSEE WAS ENTITLED WHEN THE ASSESSEES INCOME WA S ENHANCED BY ANY ADDITION TO IT. THE ASSESSEE MADE SUBMISSIONS BEFOR E THE CIT (A) AND THE PAPER BOOK WAS ALSO FILED ON 06.10.2008. THE CIT (A ) SIMPLY UPHELD THE PENALTY BY RELYING ON THE DECISION OF HON'BLE SUPRE ME COURT IN THE CASE OF UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS 306 ITR 277 (SC). LD. AR PLEADED THAT THE RATIO OF THIS CASE IS NOT AT ALL APPLICABLE TO ASSESSEES CASE AS FACTS ARE AT COMPLETE VARIANCE. HE FURTHER SUBMITTED THAT SIMPLY REJECTION OF THE CLAIM DOES NOT INVITE PENALTY U/S 271(1)(C) OF THE ACT. FOR THIS PROPOSITION HE RELIED ON THE DEC ISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC) WHEREIN HON'BLE SUPREME COURT HELD THAT MERE MAKING OF A CLAIM NOT MAINTAINABLE IN LAW WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS. HE FURTHER SUBMITTED THAT P ENALTY CANNOT BE LEVIED WHERE ADDITION HAS BEEN MADE ON ESTIMATE BASIS. FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING CASE LAWS :- (I) CIT VS AERO TRADERS (P) LTD. 322 ITR 319 (DELHI) (II) CIT VS MODI INDUSTRIAL CORPORATION (2010) 195 TAXMA N 68 (P&H H C) (III) CIT VS RAJ BANS SINGH (2005) 276 ITR 351 (ALL. HC) (IV) DABWALI TRANSPORT COMPANY VS ACIT 137 TTJ 49 (CHD. TRIB) (V) ACIT VS ALLIED CONSTRUCTION (2007) 106 TTJ 616 (DEL HI TRIB) (VI) ITO VS C CHHOTALAL TEXTILES (P) LTD. (2005) 95 TTJ 436 (MUM TRIB) (VII) JT CIT VS VXL (INDIA) LTD. (2005) 94 TIJ 513 (AMRIT SAR TRIB) (VIII) BRIJ BALA CHAUDHARY (SMT) VS ITO 82 TIJ 355 (LUCK T RIB) ITA NO.2891/DEL/2009 7 FOR THE PROPOSITION THAT WHEN ADDITION MADE ON GROS S PROFIT RATE AND ESTIMATION IS CONFIRMED BY THE TRIBUNAL IT DOES NO T AMOUNT TO CONCEALMENT OF PARTICULARS OF INCOME BY FURNISHING INACCURATE PARTICULARS OF INCOME HE RELIED ON THE DECISION OF ITAT AHMED ABAD BENCH IN THE CASE OF SUDESH KHANNA VS. ACIT (2005) 98 TTJ 106. HE FURTHER SUBMITTED THAT THE TRIBUNAL IS WELL WITHIN ITS JURI SDICTION TO RECORD FRESH FINDINGS IN PENALTY PROCEEDINGS AND IT WILL NOT AMO UNT TO REVIEWING ITS EARLIER ORDER IN QUANTUM APPEAL. EVEN WHERE THE TRI BUNAL HAS SUSTAINED THE ADDITION IN QUANTUM APPEAL ITS ORDER DELETING PENALTY BASED ON SUCH ADDITION COULD NOT BE SAID TO SUFFER FROM ANY LEGAL INFIRMITY. FOR THIS PROPOSITION HE RELIED ON THE DECISION OF HON'BLE A LLAHABAD HIGH COURT IN THE CASE OF CIT VS. MATA PRASAD REPORTED IN 278 ITR 354 (ALL.). HE FURTHER SUBMITTED THAT EVEN THE ADDITION HAS BEEN C ONFIRMED IN APPEAL CONCEALMENT STILL TO BE ESTABLISHED. NO PENALTY U/S 271(1)(C) CAN BE LEVIED ONLY ON THE GROUND THAT SOME ADDITIONS HAVE BEEN MA DE IN THE ASSESSMENT WHICH WERE SUBSEQUENTLY CONFIRMED IN THE APPEAL. AL THOUGH THE FINDINGS GIVEN IN ASSESSMENT ARE GOOD EVIDENCE HOWEVER SAME IS NOT CONCLUSIVE IN PENALTY PROCEEDINGS. FOR LEVYING THE PENALTY IT HAS TO BE SEEN THAT ADDITIONS MADE ARE BASED ON MATERIAL FROM WHICH AN INFERENCE CAN BE DRAWN THAT ASSESSEE HAS CONCEALED PARTICULARS OF IN COME. FOR THIS PROPOSITION HE RELIED ON THE DECISION OF ITAT DEL HI BENCH IN THE CASE OF ITO VS. RAVI KHURANA 173 TAXMAN 26 (MAG.)(DELHI T RIB.) AND ITO VS. ITA NO.2891/DEL/2009 8 KULDEEP SOOD ENTERPRISES 103 TTJ 573. THE ASSESSE E HAS INCLUDED DUTY DRAWBACK /DEPB IN THE AMOUNT ELIGIBLE FOR DEDUCTION U/S 80IB WHEN THE ISSUE WAS DEBATABLE REGARDING ALLOWABILITY OR OTHER WISE OF SUCH CLAIM THEREFORE PENALTY U/S 271(1)(C) CANNOT BE LEVIED. FOR THIS PROPOSITION HE RELIED ON THE DECISION OF ITAT DELHI BENCH IN THE CASE OF BALDEV WOOLEN INTERNATIONAL VS. ITO REPORTED IN 131 TTJ 33 8 (DELHI TRIB.). 5. ON THE OTHER HAND LD. DR RELIED ON THE ORDER OF THE AUTHORITIES BELOW AND SUBMITTED THAT ASSESSEE HAS NOT PRODUCED ALL THE VOUCHERS AS DESIRED BY THE ASSESSING OFFICER THEREFORE THE AD DITION WAS MADE BY REJECTING THE BOOKS OF ACCOUNT AND THE ADDITION HAS BEEN CONFIRMED UPTO THE LEVEL OF ITAT. THEREFORE THE LEVY OF PENALTY I S JUSTIFIED. 6. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. WE HA VE ALSO PERUSED THE RECORDS. WE HAVE ALSO GONE THROUGH THE QUANTUM ASSESSMENT ORDER AND CIT (A) ORDER. THE ASSESSEE WAS EXPORTING THE G ARMENTS DURING THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR UNDER CO NSIDERATION AND WAS ENTITLED FOR DEDUCTION U/S 80HHC ON THE PROFITS DER IVED FROM THESE EXPORTS. THE ASSESSEES TURNOVER WAS CONSISTED ONLY EXPORT SALES AS EVIDENT FROM PAGE 59 OF THE PAPER BOOK. THE EXPORT SALES ARE RS.67 56 240/- AND NO OTHER INCOME HAS BEEN SHOWN I N THE TRADING ACCOUNT FOR THE YEAR UNDER CONSIDERATION. THUS THE RE IS NO DISPUTE THAT ASSESSEE WAS ENTITLED FOR DEDUCTION U/S 80HHC AS PR OFITS FOR THE YEAR. THE RETURN OF INCOME WAS FILED DECLARING LOSS. IN THE L OSS RETURN THERE WAS NO ITA NO.2891/DEL/2009 9 POSSIBILITY OF CLAIM OF DEDUCTION U/S 80HHC ON THE INCOME. IN VIEW OF THESE FACTS THE ASSESSEE COULD NOT FILE ACCOUNTANT S REPORT IN FORM NO.10CCAC ALONG WITH THE RETURN OF INCOME. IN THE A SSESSMENT YEAR 1994-95 CIT (A) HIMSELF HAD DIRECTED ASSESSING OFF ICER TO ALLOW 80HHC CLAIM WHEN REPORT OF ACCOUNTANT WAS NOT SUBMI TTED ALONG WITH THE RETURN OF INCOME BUT FILED LATER. THE CLAIM OF THE ASSESSEE U/S 80HHC WAS REJECTED BY THE CIT (A) ONLY ON THIS BASIS. THE ITAT HAS DISMISSED THE ASSESSEES APPEAL IN QUANTUM ONLY ON THE BASIS OF NON-PROSECUTION. THE ASSESSING OFFICER MADE ADDITION BY REJECTING TH E BOOKS OF ACCOUNT OF THE ASSESSEE AND ESTIMATING THE GROSS PROFIT RATE A ND ALSO MADE DISALLOWANCES OUT OF THE CHARITY AND DONATIONS AND 5% OF OTHER EXPENSES. THUS THE ADDITIONS WERE MERELY ON ESTIMATE AND AD HOC BASIS. NO SPECIFIC DEFECT WAS NOTED IN THE BOOKS OF ACCOUNTS. ALL THE SE FACTS SHOW THAT THE ADDITIONS WERE NOT BASED ON ANY SPECIFIC FINDING OF THE DEFECTS IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND DEFECTS IN THE CLAIM OF EXPENSES BY THE ASSESSEE. HAD THERE BEEN CONTEST OF THE APPEAL IN QUANTUM CERTAIN ADDITIONS COULD NOT HAVE BEEN SUSTAINED AT ITAT LEV EL. ASSESSEE WAS ENTITLED FOR 80HHC ON 100% EXPORT PROFITS. THUS TH ERE CANNOT BE ANY INTENTION TO CONCEAL THE INCOME. FURTHER AT NONE OF THE STAGE THE CLAIM OF ASSESSEE HAS BEEN FOUND FALSE OR NON-GENUINE. THE P ENALTY HAS BEEN LEVIED U/S 271(1)(C) OF THE ACT WHICH HAS BEEN CONF IRMED BY THE CIT (A) BY RELYING ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF UNION ITA NO.2891/DEL/2009 10 OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS 306 IT R 277 (SC). BUT FACTS OF THAT CASE ARE AT VARIANCE TO ASSESSEES CA SE. IN OUR CONSIDERED VIEW WHILE MAKING THE ADDITION ON ESTIMATE BASIS A ND NO SPECIFIC DEFECT IN THE BOOKS NO PENALTY U/S 271(1)(C) CAN BE LEVIE D WHEN THE ASSESSEE WAS ENTITLED AS PER LAW FOR DEDUCTION U/S 80HHC FOR ANY ENHANCEMENT IN THE INCOME BEING EXPORTER. WE ALSO FIND SUPPORT FRO M THE CASE LAWS RELIED UPON BY LD. AR CITED SUPRA IN ACCEPTING THE APPEA L OF THE ASSESSEE. THEREFORE WE SET ASIDE THE ORDERS OF THE AUTHORITI ES BELOW AND ALLOW THE RELIEF TO THE ASSESSEE. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF OCTOBER 2013. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 31 ST DAY OF OCTOBER 2013/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-IX NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR/ITAT NEW DELHI