SURESH HOTWANI, MUMBAI v. DCIT RG 8(3),

ITSSA 116/MUM/2008 | misc
Pronouncement Date: 28-01-2011 | Result: Allowed

Appeal Details

RSA Number 11619916 RSA 2008
Assessee PAN AAPPH1286G
Bench Mumbai
Appeal Number ITSSA 116/MUM/2008
Duration Of Justice 2 year(s) 1 month(s) 13 day(s)
Appellant SURESH HOTWANI, MUMBAI
Respondent DCIT RG 8(3),
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 28-01-2011
Date Of Final Hearing 20-01-2011
Next Hearing Date 20-01-2011
Assessment Year misc
Appeal Filed On 15-12-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH BEFORE SHRI D.K.AGARWAL JUDICIAL MEMBER & SHRI T.R.SOOD ACCOUNTANT MEMBER I.T.(SS).A.NO.116/MUM/2008 BLOCK PERIOD 01-04-1989 TO 2-12-1989 SHRI SURESH HOTWANI 9 INDUSTRY HOUSE PLOT NO.4 MARWAH INDL. ESTATE ANDHERI (E) MUMBAI 400 072. PAN NO. AAPPH 1286 G VS. DY. COMMISSIONER OF INCOME TAX RANGE 8(3) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI BEHARILAL. RESPONDENT BY : SHRI SANJEEV DUTT. O R D E R PER T.R.SOOD AM: THROUGH THIS APPEAL ASSESSEE HAS CHALLENGED THE O RDER OF THE CIT(A) FOR CONFIRMING THE PENALTY LEVIED U/S.158BFA (2). 2. AFTER HEARING BOTH THE PARTIES WE FIND THAT A S EARCH WAS CARRIED OUT IN THE PREMISES OF THE ASSESSEE AND ASSESSMENT WAS COMPLETED U/S.158BC R.W.S. 143[3]. CERTAIN ADDITIONS WERE MAD E OUT OF WHICH AN ADDITION ON ACCOUNT OF BOGUS PURCHASES BY PRIME SYN THETIC AMOUNTING TO RS.26 97 775/- AND UNDISCLOSED INCOME FOR A.YRS. 1990-91 TO 1997- 98 AMOUNTING TO RS.78 650/- WAS CONFIRMED BY THE TR IBUNAL. AS FAR AS THE ADDITION ON ACCOUNT OF BOGUS PURCHASES IS CONCE RNED THE ASSESSEE WAS RUNNING A PROPRIETARY CONCERN IN THE NAME OF PR IME SYNTHETIC FOR DOING BUSINESS IN TRADING OF YARN. NO RETURNS WERE FILED FOR THIS BUSINESS TILL A.Y 1997-98. IN THE BLOCK RETURN IT W AS NOTICED THAT THERE WAS A TURNOVER OF RS.3.05 CRORES RS.7.19 CRORES AN D RS.25.56 LAKHS IN 2 A.YRS. 1996-97 1997-98 1998-99 RESPECTIVELY. IT W AS FURTHER FOUND THAT HUGE PURCHASES WERE MADE IN CASH AND PARTIES C OULD NOT BE PRODUCED. EVEN BILLS AND VOUCHERS FOR PURCHASES COU LD NOT BE PRODUCED. THE OTHER UNDISCLOSED INCOME PERTAINS TO SALARY IN VARIOUS YEARS DETAILS OF WHICH ARE AS UNDER: ASSESSMENT YEAR SALARY INCOME 1990-91 ` `` ` . 17 550/- 1991-92 ` `` ` . 21.450/- 1992-93 ` `` ` . 21.450/- 1993-94 ` ` `` ` . 27 300/- 1994-95 ` `` ` . 28 600/- 1995-96 ` `` ` . 33 800/- 1996-97 ` `` ` . 39 000/- 1997-98 ` `` ` . 39 650/- --------------- --------------- --------------- --------------- ` `` `. .. .2 28 800/- THESE ADDITIONS WERE DELETED BY THE CIT(A). HOWEVER ON FURTHER APPEAL TRIBUNAL CONFIRMED THE ADDITION OF RS.78650/ -. 3. IN RESPONSE TO THE SHOW CAUSE NOTICE FOR LEVY OF PENALTY IT WAS MAINLY ARGUED THAT PENALTY IS NOT AUTOMATIC. IT WAS FURTHER SUBMITTED THAT ADDITIONS WERE MADE NOT ON THE BASIS OF ANY MA TERIAL FOUND BUT INFERRED FROM OTHER THINGS. THE ADDITION IS ON ACCO UNT OF ESTIMATED DISALLOWANCE FOR CASH PAYMENT U/S.40A(3) AND THERE FORE PENALTY COULD NOT BE LEVIED. THE AO AFTER EXAMINING THE SUB MISSIONS WAS OF THE VIEW THAT SINCE ADDITIONS HAVE BEEN CONFIRMED E VEN BY THE TRIBUNAL ACCORDINGLY HE LEVIED PENALTY @ 100% AMO UNTING TO RS.18 32 421/-. 4. ON APPEAL LD. CIT(A) CONFIRMED THE PENALTY VIDE FOLLOWING PARA: I HAVE GONE THROUGH THE PENALTY ORDER PASSED BY A .O SUBMISSIONS MADE BY THE APPELLANT AND ALSO DISCUSSED THE CASE W ITH THE AR OF APPELLANT. THE APPELLANT IS NOT CORRECT IN STATING THAT PENALT Y IS BASED 3 ON ONLY DIFFERENCE IN RETURNED AND ASSESSED INCOME AS THE ISSUE HAS BEEN CONSIDERED BY THE APPELLATE AUTHORITIES IN DET AIL AND ONLY THEREAFTER ADDITIONS WERE UPHELD. IT HAS BEEN HELD THAT THERE WAS INFLATION IN PURCHASES TO SET OFF PROFITS ARISING F ROM BUSINESS AS NO PURCHASE VOUCHERS COULD BE PRODUCED BY THE APPELLAN T. FURTHER THE HON'BLE ITAT IS THE HIGHEST FACT FINDING AUTHORITY AND HENCE THERE IS NO QUESTION OF TWO OPINIONS BEING POSSIBLE REGARDING T HE QUANTUM ON WHICH PENALTY HAS BEEN IMPOSED. IT MAY FURTHER BE M ENTIONED THAT THE APPELLANT CANNOT CLAIM THAT ADVERSE MATERIAL WAS NO T FOUND DURING THE COURSE OF SEARCH. IN FACT IT WAS ONLY AFTER SEARCH THAT IT COULD BE DISCOVERED THAT THE APPELLANT WAS CARRYING ON BUSIN ESS IN THE NAME OF PRIME SYNTHETICS INCOME OF WHICH WAS NEVER BEEN RETURNED. THUS HERE IT IS NOT THE CASE OF LEVY OF PENALTY ONLY BEC AUSE OF DIFFERENCE IN RETURNED INCOME AND ASSESSED INCOME AND HENCE THE C ASE LAWS RELIED UPON BY THE APPELLANT ARE APPLICABLE. HERE IS THE C ASE OF CONSCIOUS ATTEMPT TO CONCEAL INCOME AND FURNISH INACCURATE PA RTICULARS OF INCOME. THE APPELLANT IN ITS SUBMISSIONS AGREED THA T PENALTY U/S.158BFA[2] IS AT PAR WITH PENALTY U/S.271[1][C] OF THE I.T.ACT. IN THE CASE OF UNION OF INDIA V. DHARMENDRA TEXTILE PROCES SOR 166 TAXMAN 65 THE HON'BLE SUPREME COURT HAVE HELD OBJECT BE HIND ENACTING SECTION271[1][C] READ WITH EXPLANATION INDICATES TH AT THE SAID SECTION HAS BEEN ENACTED TO PROVIDE A REMEDY FOR LOSS OF RE VENUE. PENALTY U/S.271[1][C] IS A CIVIL LIABILITY. WILLFUL CONCE ALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING A CIVIL LIABILI TY AS IN THE MATTER OF PROSECUTION U/S.276C. IF RECORD BEFORE AO CAN SUSTA IN THAT THERE WAS CONCEALMENT THAT WOULD BE SUFFICIENT TO SUSTAIN TH E PENALTY. IN VIEW OF THE JUDGMENT OF HON'BLE SUPREME COURT AND THE FACTS AS MENTIONED ABOVE I AM OF THE CONSIDERED OPINION THAT A.O. WAS JUSTIFIED IN IMPOSING PENALTY U/S.158BFA[2] OF THE I.T.ACT. 5. BEFORE US LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ADDITIONS HAVE BEEN MADE ONLY ON ESTIMATE BASIS AND NO INCRIM INATION DOCUMENTS WERE FOUND DURING THE SEARCH SHOWING THAT THE PURCHASES WERE BOGUS. IN THIS REGARD HE REFERRED TO THE ORDER OF THE CIT[A] IN QUANTUM PROCEEDINGS PLACED AT PAGES 29 TO 43 OF THE PAPER BOOK. HE PARTICULARLY REFERRED TO PAGE 39 PARA 6.4 OF THE CI T[A]S ORDER WHEREIN THE ALLEGATION OF BOGUS PURCHASES WAS NOT UPHELD AN D INSTEAD CIT[A] HAD ESTIMATED THE PURCHASES MADE ON CASH BASIS AND ULTIMATELY IT WAS HELD THAT PURCHASES TO THE EXTENT OF ` `` ` .1 07 86 980/- WERE MADE IN CASH AND 20% OF SUCH SUM WAS DISALLOWED. FURTHER 5% OF THE TOTAL PURCHASES AMOUNTING TO ` `` ` .5 39 349/- WERE HELD TO BE INFLATION OF 4 PURCHASES AND ADDITION OF ` `` ` .26 96 745/- WAS UPHELD. HE ARGUED THAT ONCE ADDITIONS HAVE BEEN MADE ONLY ON AN ESTIMATE B ASIS THEN IT CANNOT BE SAID THAT ANY INCRIMINATION DOCUMENT WAS FOUND DURING THE SEARCH. HE ARGUED THAT PENALTY IS NOT AUTOMATIC ON MAKING OF ANY ADDITION AND IN THIS REGARD HE RELIED ON THE DECISI ON OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF DR. HAKEEM S. A. SYED SATHAR 120 ITD 1. HE ALSO RELIED ON THE FOLLOWING DECISIONS: A) SALUJA HIRE PURCHASE LTD. VS. ACIT 120 ITD 394 B) CIT VS. SATYENDRA KUMAR DOST 18 DTR (RAJ) 236 C) CH. SURESH REDDY VS. ACIT 16 DTR (CHENNAI) (TRIB) 1 4 D) SUPER METAL INDS. VS. DCIT 23 DTR (MUM) (TRIB) 24 9 HE ARGUED THAT IN ALL THESE CASES IT HAS BEEN HELD THAT PENALTY PROCEEDINGS ARE INDEPENDENT FROM ASSESSMENT PROCEED INGS THOUGH FINDINGS IN THE ASSESSMENT PROCEEDINGS ARE CERTAINL Y RELEVANT BUT THEY CANNOT BE CONCLUSIVE FOR LEVY OF PENALTY. ON THE BA SIS OF THESE DECISIONS HE ARGUED THAT IN THE CASE BEFORE US THE FACT OF CONCEALMENT WAS NOT PROVED BECAUSE ADDITIONS WERE BASED ON ESTI MATE BASIS. THE SECOND ADDITION IS ALSO BASED ON TECHNICAL REASONS BECAUSE TRIBUNAL HAS UPHELD THE DECISION OF THE CIT[A] FOR ADDITION OF SALARY INCOME THOUGH INCOME IN THOSE YEARS WAS BELOW TAXABLE LIMI T BUT BECAUSE OF OTHER ADDITIONS INCOME HAD BECOME TAXABLE. 6. ON THE OTHER HAND LD. DR REFERRED TO THE ORDER OF THE TRIBUNAL IN QUANTUM PROCEEDINGS WHICH IS PLACED AT PAGES 44 TO 155 OF THE PAPER BOOK. HE PARTICULARLY INVITED OUR ATTENTION T O PARA-8 WHEREIN IT WAS CLEARLY FOUND THAT THE ASSESSEE WAS CARRYING ON THE BUSINESS OF 5 PRIME SYNTHETICS AS A PROPRIETARY CONCERN THROUGH W HICH TRADING OF YARN WAS CONDUCTED BUT NO RETURNS WERE FILED FOR TH IS BUSINESS. THEREFORE IT IS A CLEAR CASE OF CONCEALMENT. HE AL SO REFERRED TO THE PROVISIONS OF SEC.158BFA AND POINTED OUT THAT UNDER FIRST PROVISO CERTAIN CONDITIONS HAVE BEEN PRESCRIBED I.E. WHEREV ER ANYTHING IS FOUND DURING THE SEARCH AND ASSESSEE HAD FILED RETURN IN RESPECT OF SUCH ITEMS AND TAX HAS BEEN PAID AND NO APPEAL HAS BEEN FILED THEN NO PENALTY PROCEEDINGS CAN BE TAKEN. HOWEVER AS PER T HE SECOND PROVISO IN ALL OTHER CASES PENALTY IS MANDATORY. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT AS FAR AS ADDITION REGARDING PURCHASES IS CONCERNED SAME HAS BEEN DEALT WITH BY THE CIT[A] AT PARA 6.4 IN THE QUANTUM ORDER WHICH IS AS UNDER: 6.4 THE ANOTHER IMPORTANT QUESTION WHICH IS TO BE DECIDED IS WHETHER THE CASH PURCHASES MADE BY THE APPELLANT AN D DISALLOWED BY THE AO TO THE TUNE OF ` `` ` .1 07 86 980/- ARE BOGUS OR NOT. THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE TO PROVE THESE CASH P URCHASES BEFORE THE AO SUCH AS BILLS VOUCHERS ETC. EXCEPT THE AUDI TED BOOK. THE APPELLANT HAS ALSO NOT PRODUCED ANY EVIDENCE AS TO ON WHAT BASIS CASH PURCHASES HAVE BEEN DEBITED IN THE BOOKS OF ACCOUNT . THE AO MENTIONED IN THE ASSESSMENT ORDER THAT THERE IS NO ANGLE FROM WHERE THESE PURCHASES CAN BE VERIFIED. THE APPELLANTS ONL Y ARGUMENT IS THAT THE CASH PURCHASES ARE GENUINE AS THE QUANTITY ACCO UNT TALLIES AND THE SALES HAVE BEEN ACCEPTED IN TOTO. THE APPELLANTS A RGUMENT THAT WHEN THE CASH PURCHASES ARE BOGUS THEN HOW THE SALES TO THAT EXTENT CAN BE GENUINE. THE APPELLANTS FURTHER ARGUMENT THAT QUAN TITY ACCOUNTS AS PER AUDITED ACCOUNT TALLIES SALES ARE ACCEPTED AND AT THE END OF THE F.YS. RELEVANT TO A.YS. 1996-97 & 1997-98 NO STOCK IS LEF T OUT WITH THE APPELLANT PROVES BEYOND DOUBT THAT CASH PURCHASES ARE NOT BOGUS. AFTER CONSIDERING THESE ARGUMENTS I FIND THERE IS A FORCE IN THESE ARGUMENTS. THE AO HAS ACCEPTED THE QUANTITATIVE TAL LIES OF THE STOCK AS PER THE AUDIT REPORT AND HAS ALSO ACCEPTED THE SALE S IN TOTAL THEN THERE IS NOT ROOM TO DOUBT THAT CASH PURCHASES ARE BOGUS. HOWEVER AT THE SAME TIME THESE CASH PURCHASES ARE ALSO NOT VERIFIA BLE. CONSIDERING ALL THESE FACTORS I AM OF THE OPINION THAT THE APPELLA NTS CASH PURCHASES WHICH ARE 9.4% AND 55% RESPECTIVELY FOR THE THREE A SSESSMENT YEARS MUST HAVE BEEN INTRODUCED WITH A VIEW TO INFLATE TH E COST OF THE 6 PURCHASES JUST TO OFF SET THE PROFIT MARGIN OF THE BUSINESS. DUE TO THIS FACT THE APPELLANT HAS INCURRED LOSSES FOR ALL THE THREE ASSESSMENT YEARS AS MENTIONED ABOVE. AS THE APPELLANT HAS NOT FURNIS HED ANY RELEVANT DETAILS ABOUT THESE CASH PURCHASES IT IS VERY DOUBT FUL WHETHER THESE CASH PURCHASES HAVE BEEN MADE AT MARKET PRICES. THU S I AM CONVINCED THAT THROUGH THESE CASH PURCHASES THE APPELLANT HAS OFF SET THE PROFIT WHICH MAY HAVE BEEN EARNED THROUGH OTHER PURCHASES. I THEREFORE ESTIMATE 5% OF THE CASH PURCHASES OF ` `` ` .1 07 86 980/- AS THE INFLATED COST OF THE CASH PURCHASES WHICH WORKS OUT TO ` `` ` .5 39 349/- AND RETAINED THE ADDITION OF ` `` ` .5 39 349/-. IT IS FURTHER NOTED THAT THE CASH PURC HASES ARE ALSO HIT BY THE PROVISIONS OF SEC.40A(3) OF THE IT ACT. UNDER THESE PROVISIONS THE PURCHASES CANNOT BE IN CASH OVER ` `` ` .20 000/-. IF THE CASH PURCHASES ARE OVER ` `` ` .20 000/- A DISALLOWANCE OF 20% OF SUCH EXPENDITURE IS TO BE MADE. THOUGH THIS IS A BLOCK A SSESSMENT BUT ALL OTHER NORMAL PROVISIONS OF THE IT ACT ARE APPLICABL E AND THEREFORE I AM OF THE OPINION THAT PROVISIONS OF SEC 40A(3) ARE AP PLICABLE. I THEREFORE DISALLOW 20% OF ` `` ` .1 07 86 980/- EXPENDED FOR CASH PURCHASES WHICH WORKS TO ` `` ` .21 57 396/- IS DISALLOWED UNDER THE SAID PROVISION . THUS THE TOTAL DISALLOWANCE OF ` `` ` .29 96 745 [ ` `` ` .21 57 296 + ` `` ` .5 39 394] OUT OF ` `` ` .1 07 86 980/- IS RETAINED. THE BALANCE ADDITION OF ` `` ` .80 90 235/- [ ` `` ` .1 07 86 980 ` `` ` .26 97 745] IS DELETED. 8. AS FAR AS ADDITION ON ACCOUNT OF SALARY IS CONCE RNED THE SAME HAS BEEN DELETED BY THE TRIBUNAL VIDE PARAS 14 & 15 OF ITS ORDER IN QUANTUM APPEAL WHICH ARE AS UNDER: 14. GROUND NO.4 RAISED BY THE REVENUE RELATES TO A DDITION OF ` `` ` .2 28 800/- MADE BY THE ASSESSING OFFICER ON ACCOU NT OF INCOME FROM UNDISCLOSED SOURCES RELATING TO ASSESSMENT YEA RS 1990-91 TO 1995-98. BRIEFLY STATED THE FACTS ARE THAT IN THE A SSESSMENT YEARS 1990- 01 TILL 1995-96 THE ASSESSEE HAD INCOME ONLY FROM SALARY WHICH VARIED FROM ` `` ` .17 550/- TO ` `` ` .33 800/- WHICH WAS BELOW THE TAXABLE LIMIT IN ALL THE YEARS. IN RESPECT OF ASSESSMENT YEARS 1996-97 A ND 1997-98 THE ASSESSEE HAD SHOWN BUSINESS LOSS FROM THE PROPRIETA RY CONCERN M/S PRIME SYNTHETICS. EVEN OTHERWISE THE SALARY INCOME OF ` `` ` .39 000/- FOR ASSESSMENT YEAR 1996-97 AND ` `` ` .39 650/- FOR ASSESSMENT YEAR 1997-98 WAS BELOW THE TAXABLE LIMIT. SINCE NO RETURNS HAD B EEN FILED BY THE ASSESSEE FOR THESE YEARS THE ASSESSING OFFICER CON SIDERED THE SAME AS INCOME FROM UNDISCLOSED SOURCES. ON APPEAL THE CIT [A] DELETED THE ADDITION OF ` `` ` .2 28 800/- MADE BY THE ASSESSING OFFICER FOR THES E YEARS FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF PRADEEP C. PATEL 58 TTJ 409 (AHD.) WHEREIN IT WAS HELD THAT IF THE INCOME OF THE ASSESSEE WAS BELOW THE TAXABLE LIMIT AND THE ASSESS EE WAS NOT REQUIRED TO FILE THE RETURN THEN SUCH INCOME CANNOT BE TREA TED AS UNDISCLOSED INCOME. AGGRIEVED BY THE SAME THE REVENUE IS IN AP PEAL BEFORE THE TRIBUNAL. 15. AFTER HEARING BOTH THE PARTIES WE ARE IN AGREE MENT WITH THE LEGAL POSITION DECLARED BY VARIOUS BENCHES OF THE T RIBUNAL TO THE EFFECT 7 THAT IF THE INCOME OF THE ASSESSEE IS BELOW THE TAX ABLE LIMIT AND THE ASSESSEE IS NOT REQUIRED TO FILE THE RETURN THEN S UCH INCOME CANNOT BE TREATED AS UNDISCLOSED INCOME IN THE BLOCK ASSESSME NT PROCEEDINGS. IN VIEW OF THE SAME WE ARE OF THE VIEW THAT INCOME RE LATED TO ASSESSMENT YEARS 1990-91 TO 1995-96 CANNOT BE CONSIDERED AS UN DISCLOSED INCOME IN THE BLOCK ASSESSMENT PROCEEDINGS. THE INCOME FRO M SALARY FOR THESE YEARS AMOUNTS TO ` `` ` .1 50 150/-. TO THAT EXTENT THE ORDER OF THE CIT[A] HAS TO BE UPHELD. HOWEVER ON FACTS WE ARE UNABLE TO UPHOLD THE ORDER OF THE CIT[A] RELATING TO ASSESSMENT YEARS 1996-97 AND 1997-98 BECAUSE IN THESE YEARS THE ASSESSEE WAS CARRYING ON THE BUSINESS OF TRADING IN YARN AND FABRICS IN THE NAME OF M/S PRIM E SYNTHETICS AND THE INCOME FROM THIS FIRM HAS BEEN ASSESSED REGARDING U NDISCLOSED INCOME TO THE EXTENT OF ` `` ` .26 96 745/-. IN VIEW OF THIS FACT IT CANNOT BE SA ID THAT INCOME OF THE ASSESSEE FOR THESE TWO YEARS WAS BELO W THE TAXABLE LIMIT. CONSEQUENTLY THE SALARY INCOME FROM THESE TWO YEAR S WOULD FORM PART OF THE UNDISCLOSED INCOME OF THE LASS. THE ORDER OF THE CIT[A] IS THEREFORE MODIFIED AND CONSEQUENTLY THE ADDITION IS SUSTAINED TO THE EXTENT OF ` `` ` .78 650/-. FROM THE ABOVE IT BECOMES CLEAR THAT AS FAR AS ADD ITION ON ACCOUNT OF PURCHASES IS CONCERNED THE SAME HAS BEEN MADE ON E STIMATE BASIS AND BOGUS PURCHASES WERE ONLY AN ESTIMATED FIGURE O F 5%. AS FAR AS ADDITION ON ACCOUNT OF CASH PAYMENT U/S.40A(3) IS C ONCERNED IT IS PURELY A TECHNICAL ADDITION. SIMILARLY THE ADDITIO N ON ACCOUNT OF SALARY HAS BEEN CONFIRMED BY THE TRIBUNAL ON THE TECHNICAL REASON OTHERWISE THERE IS NO CONCEALMENT SIMPLICITOR BECAUSE SALARY INCOME AS SUCH WAS NOT DECLARED BECAUSE INCOME IN THOSE YEARS WAS LESS THAN TAXABLE INCOME. WHEN THE ADDITIONS HAVE BEEN CONFIRMED ON E STIMATE BASIS OR FOR TECHNICAL REASONS THEN IT CANNOT BE SAID THAT ASSESSEE HAD INTENTIONALLY CONCEALED THE PARTICULARS OF INCOME O R FILED INACCURATE PARTICULARS AND CONSEQUENTLY SUCH TRANSACTIONS WOUL D NOT BECOME LIABLE FOR LEVY OF PENALTY. FINDINGS OF CONCEALMENT CANNOT BE BASED ON ESTIMATION ALONE. IN OUR VIEW THE NATURE OF ADDIT IONS WHICH WERE CONFIRMED ON ESTIMATED BASIS CLEARLY SHOW THAT SAM E IS NOT A FIT CASE 8 FOR LEVY OF PENALTY AND THEREFORE WE SET ASIDE TH E ORDER OF THE LD. CIT[A] AND DELETE THE PENALTY. 9. IN THE RESULT ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JANUARY 2011. SD/- SD/- (D.K.AGARWAL) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 28 TH JANUARY 2011. P/-*