ASST CIT 1(2), MUMBAI V. NICKUNJ EXIMP ENTERPRISES P. LTD, MUMBAI

ITA 1169/MUM/2011

• Counselvise Citation: 116919914 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 08-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C P PATHAK
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Bogus purchase

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI .. , !'# $ $ $ $ %&. !.'.. $( ) !'# !* BEFORE SHRI P.M. JAGTAP, AM AND DR. S.T.M. PAVALAN, JM !./ I.T.A. NO. 1169 /MUM/2011 ( )( , $-, )( , $-, )( , $-, )( , $-, / / / / ASSESSMENT YEAR : 2001-02) DY. COMMISSIONER OF INCOME TAX 1(2), ROOM NO. 535, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ( ( ( ( / VS. M/S NICKUNJ EXIMP ENTERPRISES P LTD., SRI JORAVAR BHAVAN, 93, M.K. ROAD, NEW MARINE LINES, MUMBAI 400 020. #. !./ PAN : AABCN 0991K ( ./ / // / APPELLANT ) .. ( 01./ / RESPONDENT ) ./ 2 3 ! / APPELLANT BY : SHRI C.P. PATHAK 01./ 2 3 ! / RESPONDENT BY : SHRI JITENDRA SINGH !($ 2 / // / DATE OF HEARING : 19-09-13 45- 2 / DATE OF PRONOUNCEMENT : 25-09-13 '6 / O R D E R PER P.M. JAGTAP, A.M. : .. , !'# THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER PASSED BY THE LD. CIT(A) -2, MUMBAI DATED 19-11-2010 WHEREBY HE C ANCELLED THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 IN RESPECT OF ADDITION OF RS. 1,33,41,917/- MADE TO THE TOTAL INC OME OF THE ASSESSEE BY WAY OF DISALLOWANCE OF PURCHASES TREATING THE SAME AS N ON-GENUINE. ITA 1169/M/11 2 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSER VED THAT THE ADDITION OF RS. 1,33,41,917/- MADE TO THE TOTAL INCOME OF THE ASSES SEE ON ACCOUNT OF ALLEGED BOGUS PURCHASES WAS DELETED BY THE TRIBUNAL VIDE IT S ORDER DATED 30 TH APRIL, 2000 PASSED IN ITA NO. 8994/MUM/2004 IN THE QUANTUM PROCEEDINGS AND TAKING NOTE OF THE SAME, THE LD. CIT(A) CANCELLED T HE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE ACT IN RESPECT OF THE ADD ITION MADE ON ACCOUNT OF ALLEGED BOGUS PURCHASES. THIS CONSEQUENTIAL RELIEF ALLOWED BY THE LD. CIT(A) HAS BEEN CHALLENGED BY THE REVENUE IN THE PRESENT A PPEAL MAINLY ON THE GROUND THAT THE DECISION OF THE TRIBUNAL DELETING T HE ADDITION MADE ON ACCOUNT OF ALLEGED BOGUS PURCHASES WAS CHALLENGED B Y IT IN THE APPEAL FILED BEFORE THE HONBLE BOMBAY HIGH COURT. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE SAID APPEAL FILED BY THE REVENUE, HOWEVER, HAS SINCE BEEN DISMISSED BY THE HONBLE BOMBAY HIGH COURT VIDE ITS ORDER DATED 17 TH DECEMBER, 2012 PASSED IN INCOME TAX APPEAL NO. 5604 OF 2010 AND EVEN THE SLP FILED BY THE DEPARTMENT AGAINST THE SAID ORDER OF THE HONBLE BOMBAY HIGH COURT HAS ALREADY BEEN DISMISSED BY THE HONBL E SUPREME COURT ON 30 TH AUGUST, 2013. CONSEQUENTLY THE VERY FOUNDATION OF THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE ACT NO MORE SURVIVES AND THE SAID PENALTY IS LIABLE TO BE CANCELLED HAVING NO LEGS TO STAND AS R IGHTLY HELD BY THE LD. CIT(A). WE, THEREFORE, UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) CANCELING THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE AC T IN RESPECT OF THE ADDITION MADE ON ACCOUNT OF ALLEGED BOGUS PURCHASES AND DISM ISS THIS APPEAL FILED BY THE REVENUE. ITA 1169/M/11 3 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. #$ 2 7 2 89 ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH SEPTEMBER, 2013. . '6 2 45- :'(; 25-09-2013 5 2 SD/- SD/- (DR. S.T.M. PAVALAN) (P.M. JAGTAP ) ) !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; :'( DATED 25-09-2013 $.)(.!./ RK , SR. PS '6 2 0)<= >=- '6 2 0)<= >=- '6 2 0)<= >=- '6 2 0)<= >=-/ COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. ? () / THE CIT(A)- 2, MUMBAI 4. ? / CIT 1, MUMBAI 5. =$B 0))( , , / DR, ITAT, MUMBAI G BENCH 6. %, C / GUARD FILE. '6(! '6(! '6(! '6(! / BY ORDER, !1= 0) //TRUE COPY// D D D D/ // /!8 !8 !8 !8 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI