DCIT, CIRCLE-2, THANE V. PRAKASH HANSRAJ PATEL, THANE

ITA 1268/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5859 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 06-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAMMAD RIZWAN
• Assessee Lawyers: N O N E
• Keywords: Bogus purchase
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH , JM ITA NO. 12 68 /MUM/201 9 ( ASSESSMENT YEAR: 2013 - 14 ) D .C.I.T., CIRCLE - 2 , THANE, ROOM NO. 27, 6 TH FLOOR, B - WING, WAGLE INDUSTRIAL ESTATE, THANE (W) - 40060 4. VS. SHRI PRAKASH HANSRAJ PATEL (PROP OF PRAKASH INDUSTRIES), 304 - B WING, KASTURI APARTMENT PARCHAL ROAD, BHAYANDER (E), THANE - 401105. PAN/GIR NO. AMSPP 2670 F (APPELLANT ) .. (RESPONDENT ) REVENUE BY SHRI MOHAMMAD RIZWAN ( ADDL.CIT ) ASSESSEE BY NON E DATE OF HEARING 04/03/2020 DATE OF PRONOUNCEMENT 11 / 03 /20 20 / O R D E R PER: R.C. SHARMA, A.M. THIS IS THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) - 1 , THANE DATED 0 3 /12 /2018 FOR THE A.Y. 2013 - 14 IN THE MATTER OF DELETION OF PENALTY IMPOSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) AMOUNTING TO RS. 80,627 / - . 2. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT THE A.O. HAS LEVIED PENALTY OF RS. 80,627 / - WITH RESPECT TO A DDITION MADE ON ACCOUNT OF BOGUS PURCHASES BY ESTIMATING PROFIT THEREON. BY THE IMPUGNED ORDER, THE LD. CIT(A) HAS DELETED THE PENALTY AFTER OBSERVING AS UNDER: ITA NO. 1268 /MUM/2019 D CIT VS SHRI PRAKASH HANSRAJ PATEL 2 DECISION ON GROUND NO. 1 : - 5. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, FINDINGS OF THE AO, SUBMISSION OF THE AR OF THE APPELLANT AND MATERIAL PLACED ON RECORD. IT IS OBSERVED THAT THERE IS A NORMAL TENDENCY TO SUBJECT AN ASSESSEE TO PENALTY U/S 271(1)(C) IN ALL CASES WHERE THE ASSESSEE REFRAINS TO FILE AN APPEAL PURSUANT TO AN ASSESSMENT ORDER, WITH A HOPE TO END THE NIGHTMARE WHICH BEGAN WITH SELECTION OF CASE FOR SCRUTINY BY ACCEPTING THE GENERAL ADDITIONS IN ASSESSMENT ORDER. PENALTY IS STRAIGHTAWAY LEVIED MERELY BECAUSE NO APPEAL HAS BEEN FILED AGAINST THE QUANTUM ORDER. THE HON'BLE S UPREME COURT IN THE CASE OF SIR SHADILAL SUGAR MILLS (168 IT R 7051) HELD THAT THERE MAY BE A HUNDRED AND ONE REASONS FOR NOT PROTESTING AND AGREEING TO AN ADDITION BUT THAT DOES NOT FOLLOW TO THE CONCLUSION THAT THE AMOUNT AGREED TO BE ADDED WAS CONCEALED INCOME. THE HON'BLE KARNATAKA HIGH COURT IN CASE OF CIT V. MANJUNATHA COTTON & GINNING FACTORY (2013 35 TAXMANN.COM 250) CATEGORICALLY HELD THAT: - THE VERY FACT THAT THE ASSESSEE AGREED TO PAY TAX AND DID NOT CHALLENGE TH E ASSESSMENT ORDER, CANNOT BE CONSTRUED AS MALA FIDE.' 6. THE SUPREME COURT HAS RECENTLY REITERATED THE LAW IN CASE OF DILIP N. SHROFF V. JT. CIT [2007] 291 ITR 519 BY HOLDING IN PARA 62 THAT FINDING IN ASSESSMENT PROCEEDINGS CANNOT AUTOMATICALLY ADOPTED I N PENALTY PROCEEDINGS AND THE AUTHORITIES HAVE TO CONSIDER THE MATTER AFRESH FROM DIFFERENT ANGLE. IN THE CASE OF CIT V. RELIANCE PET RO PRODUCTS (P) LTD. (2010) 322 ITR 158 (SC) IT WAS HELD AS UNDER WE DO NOT AGREE; AS THE ASSESSEE HAD FURNISHED ALL THE DETAILS OF ITS EXPENDITURE AS WELL AS INCOME IN ITS RETURN, WHICH DETAILS, IN THEMSELVES, WERE NOT FOUND TO BE INACCURATE NOR COULD BE VIEWED AS THE CONCEALMENT OF INCOME ON ITS PART. IT WAS UP TO THE AUTHORITIES TO ACCEPT ITS CLAIM IN THE RETURN OR NOT. M ERELY BECAUSE THE ASSESSEE HAD CLAIMED THE ITA NO. 1268 /MUM/2019 D CIT VS SHRI PRAKASH HANSRAJ PATEL 3 EXPENDITURE, WHICH CLAIM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO THE REVENUE, THAT BY ITSELF WOULD NOT, IN OUR OPINION, ATTRACT THE PENALTY UNDER SECTION 271(1)(C). IF WE ACCEPT THE CONTENTION OF THE REVENUE THE N IN CASE OF EVERY RETURN WHERE THE CLAIM MADE IS NOT ACCEPTED BY ASSESSING OFFICER FOR ANY REASON, THE ASSESSEE WILL INVITE PENALTY UNDER SECTION 271(1)(C). THAT IS CLEARLY NOT THE INTENDMENT OF THE LEGISLATURE'. 7 . THE LEVY OF PENALTY IS MERELY ON DISA LLOWANCE OF PURCHASES AND NOT FINDING OF CONCEALMENT OF ANY PARTICULAR OR MALA - FIDE INTENTION TO REDUCE TAXABLE INCOME. ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF PURCHASES AS BOGUS AUTOMATICALLY CANNOT JUSTIFY THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. ACCORDINGLY, THE PENALTY OF RS. 80,627 / - , IMPOSED U/S 271(1)(C) OF THE I.T. ACT, BY THE AO, IS HEREBY DELETED AND THE GROUNDS OF APPEAL, RAISED AS ABOVE, ARE ALLOWED. 3. AGAINST THE ABOVE ORDER OF THE LD. CIT(A), THE REVENUE IS IN FURTHER APPEAL BEFORE T HE ITAT. 4. WE HAVE CONSIDERED THE CONTENTIONS OF LD. DR AND FOUND THAT IT IS CLEAR FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THE PENALTY HAS BEEN LEVIED FOR DISALLOWANCE OF MEAGER AMOUNT OF PURCHASES ALLEGED TO BE BOGUS. SINCE THE ADDITION WAS VERY MEAGER , THE ASSESSEE DID NOT FILE APPEAL AGAINST THE SAME. HOWEVER, THE A.O. ALSO LEVIED PENALTY FOR THE ALLEGED BOGUS PURCHASES WHICH WAS DELETED BY THE LD. CIT(A) AFTER CONSIDERING VARIOUS JUDICIAL PRONOUNCEMENTS. THE DETAILED FINDING SO RECORDED BY THE LD. C IT(A) AT PARA 5 TO 7 OF HIS APPELLATE ORDER HAS NOT BEEN CONTROVER TED BY THE LD DR. ACCORDINGLY, WE DO NOT FIND ANY ITA NO. 1268 /MUM/2019 D CIT VS SHRI PRAKASH HANSRAJ PATEL 4 REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A) FOR DELETING THE PENALTY IMPOSED FOR DISALLOWANCE OF PART OF THE PURCHASES. 5. IN THE RES ULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 1 TH MARCH , 2020 . SD/ - ( PAWAN SINGH ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 11 / 0 3 /20 20 *RAN JAN COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//