PARIKH BROS Vs. A C I T

JUDGEMENT

(1.) The appellant assessee has proposed as many as six questions stated to arise out of Tribunal's order dated 8th July,2003 made in ITA No.165/AHD/2000 upholding levy of penalty of Rs.60,430/- under Section 271(1)(c) of the Income Tax Act, 1961 (the Act).

(2.) Heard Mr.K.R.Dixit, learned Advocate appearing on behalf of the appellant. He has invited attention to order dated 25th January,2005 made by the Tribunal in ITA No.1559/AHD/99 for Assessment Year 1995-96 to point out that the quantum appeal was decided by the Tribunal subsequent to the Tribunal having rendered its decision in penalty appeal. In the circumstances, the following substantial question of law arises. Hence ADMIT.

(3.) Mr.Dixit on behalf of the appellant has requested that the present appeal relatable to penalty proceedings be decided on merits in light of Tribunal's order dated 25th January,1995 in quantum proceedings, as well as taking into consideration the fact that there was no concealment and the entire addition was based on estimate which formed the basis of the assessee agreeing to certain addition. It was further submitted that in light of settled legal position including decision of this Court (Commissioner of Income-tax Vs. Vinaychand Harilal, 120 ITR 752) no penalty could have been sustained and a statement made during course of survey proceedings would not have any evidentiary value so as to form the basis for making addition or levy of penalty. For this purpose reliance has been placed on decision of High Court of Kerala in case of Paul Mathews & Sons Vs. Commissioner of Income Tax (2003) 129 TAXMAN 416 (Ker). He therefore urged that it be held that the Tribunal had committed an error in sustaining penalty and the appeal be decided on merits.