ITO WARD 1(3) , Thane V. SHRI. CHANDRAPRAKASH M AGARWAL, Mumbai

ITA 1297/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3019 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR MISHRA
• Assessee Lawyers: KAUSHIK AGRAWAL
• Keywords: Bogus purchase; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE S HRI RAJESH KUMAR (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 1297 /MUM/2019 ASSESSMENT Y EAR: 2009 - 2010 THE INCOME TAX OFFICER, WARD 1(3), THANE, ROOM NO. 10, 6 TH FLOOR, B - WING, WAGLE I NDUSTRIAL ESTATE, THANE (W) - 400604 VS. SHRI CHANDRAPRAKASH M. AGARWAL, 51, GROUND FLOOR, M.G. ROAD, SINDU WADI, GHATKOPAR (E), MUMBAI - 400077 PAN: AFZPA6269D (APPELLANT) (RESPONDENT) REVENUE BY : SHRI RAJESH KUMAR MISHRA (DR) ASSESSEE BY : SH RI KAUSHIK AGRAWAL ( A R ) DATE OF HEARING: 03/03 /2020 DATE OF PRONOUNCEMENT: 03 / 03 /2020 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 06.12 .2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 (FOR SHORT THE CIT(A) , THANE , FOR THE ASSESSMENT YEAR 2009 - 10 , WHEREBY THE LD. CIT(A) HAS ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE PENALTY ORDER PASSED U/S 271 (1) (C) OF THE INCOME TA X ACT, 1961 (FOR SHORT THE ACT). 2 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE L D. CIT (A) WAS JUSTIFIED IN DELETING THE PENALTY LEVIED U/S 271 (1) (C) WITHOUT PROPERTY APPRECIATING THE DECISIONS OF THE HONBLE APEX COURT IN THE CASE OF MAK DATA PVT. LTD. VS CIT (CIVIL APPEAL NO. 9772 OF 2013), THE HONBLE GUJARAT HIGH COURTS DECISI ON IN THE CASE OF N.K. PROTEINS LTD., TAX APPEAL NO. 242 OF 2003 DATED 20/06/2016 AGAINST WHICH THE SLP 2 ITA NO. 1297 MUM/2019 ASSESSMENT YEAR: 2009 - 1 0 WAS DISMISSED BY THE HONBLE SUPREME COURT AND ALSO IGNORING THE FACT THAT DEPARTMENT RECEIVED SPECIFIC CREDIBLE INFORMATION IN THIS CASE FROM THE SALES TAX DEPARTMENT OF THE STATE GOVERNMENT OF MAHARASHTRA IN RESPECT OF NON - GENUINE PURCHASES. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE PENALTY LEVIED U/S 271 (1) (C) WITHOUT APPRECI ATING THE FACT THAT THERE WAS A DEFINITE FINDING IN THE ASSESSMENT ORDER IN RESPECT OF BOGUS PURCHASES AND OF FURNISHING INACCURATE PARTICULARS OF INCOME RELATING TO PURCHASES RESULTING INTO CONCEALMENT OF INCOME. 3. IT IS HUMBLY REQUESTED THAT PRESENT APPEA L IS BEING FILED IN ACCORDANCE WITH THE CBDTS INSTRUCTION NO. 3/2018 DATED 11/07/2018 AMENDED VIDE LETTER DATED 20.08.2018 AS PER PARA 10(E) OF THE SAID CIRCULAR. THEREFORE, THE ORDER OF THE CIT (A) MAY KINDLY BE VACATED AND THAT OF THE AO MAY BE RESTORED . 3. AT THE OUTSET, THE LD. COUNSEL FOR THE RESPONDENT/ASSESSEE POINTED OUT THAT THE TAX EFFECT OF THE RELIEF GRA NTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BELOW RS. 5 0 LACS AND AS PER CIRCULAR NO.17 OF 2019 DATED 08.08.2019 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) , DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA , THE CBDT HAS REVISED THE MONETARY LIMIT FOR FILING APPEAL S BEFORE THE ITAT FROM THE EXISTING LIMIT OF RS. 20 LACS TO RS. 50 LACS . IN THE LIGHT OF THE AF ORESAID FACTS, THE LD. COUNSEL SUBMITTED THAT THIS APPEAL IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY ADMITTED THAT TH IS APPEAL IS NOT MAINTAINABLE IN LIGHT OF THE AFORESAID CIRCULAR ISSUED BY THE CBD T, HOWEVER, SUBMITTED THAT THE DEPARTMENT MAY BE GIVEN LIBERTY TO FILE MISCELLANEOUS APPLICATION IN CASE IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR OR OTHERWISE MAINTAINABLE. 5. WE HAVE GONE THROUGH THE IMPUGNED O RDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE GROUNDS OF APPEALS. AS POINTED 3 ITA NO. 1297 MUM/2019 ASSESSMENT YEAR: 2009 - 1 0 OUT BY THE LD. COUNSEL, THE TAX EFFEC T IN THIS APPEAL IS LESS THAN RS. 5 0 LACS. ACCORDINGLY, W E DISMISS THE AFORESAID APPEAL FILED BY THE REVENUE AS NOT MAIN TAINABLE/WITHDRAWN . HOWEVER, IN CASE, IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR OR OTHERWISE MAINTAINABLE, THEN THE REVENUE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER OF THE TRIBUNAL F OR DECIDING THE APPEAL AFRESH ON MERITS. IN THE RESULT, APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2009 - 2010 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MARCH , 2020 . SD/ - SD/ - ( RAJESH KUMAR ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 03 / 03 / 2020 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI