ASST. CIT - 32(1), MUMBAI V. SHRI VIJAY BHOGILAL SHAH, MUMBAI

ITA 106/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2940 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N KABRA LD
• Keywords: Bogus purchase
• Section: 271(1)(c); 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE HONBLE SHRI SAKTIJIT DEY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM 1 . ./ I.T.A. NO. 106 / MUM/ 20 21 ( / ASSESSMENT YEAR : 2009 - 10 ) AC IT 32 (1) R. NO. 702, 7 TH FLOOR KAUTILYA BHAVAN BANDRA KURLA COMPLEX, BANDRA(EAST), MUMBAI - 51 / VS. SHRI VIJAY BHOGILAL SHAH, B - 1203, PRATAP HERITAGE, L T. ROA D BORIVALI (E), MUMBAI - 400 092 ./ ./ PAN/GIR NO. A KGPS - 2700 - Q ( / APPELLANT ) : ( / RESPONDENT ) REVENUE BY : SHRI S. N. KABRA - LD. SR. DR ASSESSEE BY : NONE / DATE OF HEARING : 25/10 /2021 / DATE OF PRONOUNCEMENT : 25/10/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 20 09 - 10 ARISES OUT OF THE ORDER OF LD. COMMISSIONER OF INCOME - TAX ( APPEALS ) - 44, MUMBAI [ CIT(A) ] D ATED 31/08/2020 WHICH HAS DELETED THE PENALTY OF RS.7.99 LACS U/S 271(1)(C) AS LEVIED BY LD. AO VIDE PENALTY ORDER DATED 27/03/2018. AT THE TIME OF HEARING, NONE APPEARED FOR ASSESSEE. THE LD. DR, ON THE OTHER HAND, PLEADED FOR RESTORATION OF PENALTY. 2 2. FACTS LEADING TO IMPOSITION OF PENALTY ARE THAT IN AN ASSESSMENT FR AMED U/S 143(3) R.W.S. 147 ON 26 /02/2015, THE ASSESSEE WAS SADDLED WITH ADDITION OF ALLEGED BOGUS PURCHASES ON ESTIMATED BASIS AT THE RATE OF 12.5% WHICH WAS CONFIRMED BY LD. CIT(A). CON SEQUENTLY, PENALTY OF RS.7 .99 LACS WAS IMPOSED BY LD. AO VIDE ORDER DATED 27/03/2018. HOWEVER, UPON FURTHER APPEAL, LD. CIT(A) DELETED THE PENALTY , INTER - ALIA, ON THE GROUND THAT THE ADDITIONS WERE ESTIMATED ADDITIONS AND LD AO CONCLUSIVELY FAILED TO ESTAB LISH THAT THE PURCHASES WERE BOGUS. THE LD. AO COULD NOT PROVE FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME AND THEREFORE, PENALTY ON ESTIMATED ADDITIONS WOULD NOT BE SUSTAINABLE IN TERMS OF DECISION OF HONBLE PUNJAB & HARYANA H IGH COURT IN HARIGOPAL SINGH V/S CIT (258 ITR 85). FINALLY, THE PENALTY WAS DELETED WHICH IS IN FURTHER APPEAL BEFORE US. 3. IN OUR CONSIDERED OPINION, THE PENALTY IS NOT SUSTAINABLE SINCE THE ADDITIONS ARE MERE ESTIMATED ADDITIONS OF UNPROVED PURCHASES A ND THEREFORE, NO CASE OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME COULD BE MADE OUT AGAINST THE ASSESSEE. OUR AFORESAID VIEW IS DULY SUPPORTED BY THE ORDER OF HONBLE CHHATTISGARH HIGH COURT IN CIT V/S VIJAY KUMAR JAIN (325 I TR 378; 19/04/2010) AS WELL AS THE CITED DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE IMPUGNED ORDER. 4. RESULTANTLY, THE APPEAL STAND DISMISSED. ORDER PRONOUNCED ON 25 TH OCTOBER , 2021. SD/ - SD/ - ( SAKTIJIT DEY ) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 25 /10 /2021 SR.PS, DHANANJAY 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUM BAI.