SHRI. GIRISH CHUNILAL SHAH , MUMBAI V. ITO 19(1)(3) MUMBAI, MUMBAI

ITA 1370/MUM/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7208 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 147; 144; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI AMARJIT SINGH, JM (Hearing through Video Conferencing Mode) आयकर अपील सं/ I.T.A. No. 1370/Mum/2020 (निर्धारण वर्ा / Assessment Year: 2011-12) Mr. Giresh C. Shah 114/124 Lokhndwala Building, 3 rd Floor, Room No.55, Bhandari Street, Near Gold Deval Temple, Mumbai- 400004. बिधम/ Vs. ITO-19(1)(3) Matru Mandir, 2 nd Floor, Tardeo Road, Mumbai- 400007. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AMGPS5234C (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) सुनवाई की तारीख / Date of Hearing: 22/09/2021 घोषणा की तारीख /Date of Pronouncement: 30/11/2021 आदेश / O R D E R PER AMARJIT SINGH, JM: The assessee has filed the present appeal against the order dated 29.03.2019 passed by the Commissioner of Income Tax (Appeals)-30, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y. 2011-12 wherein the penalty levied by the AO in view of the provisions u/s 271(1)(b) of the Act has been ordered to be confirmed. 2. The assessee has raised the following grounds: - “1. The order of the Income Tax Officer and CIT(A) is bad in law. Assessee by: None Revenue by: Shri T. S. Khalsa (DR) ITA. No.1370/Mum/2020 A.Y. 2011-12 2 2. The learned Commissioner Income Tax (Appeals) erred in law in confirming the penalty levied by income tax officer of Rs.10,000/- u/s 271(1)(b) of the Income Tax Act, 1961 which is unjustified. 3. The appellant craves to leave, add any of the grounds of appeal, before or at the time of hearing the said appeal." 3. The brief facts of the case are that the assessee filed his return of income on 30.09.2011 declaring total income to the tune of Rs.4,37,695/-. The case of the assessee was reopened u/s 147 of the Income Tax Act, 1961. The notice u/s 142(1) of the Act dated 06.04.2016 was issued for the appearance of the assessee on 20.04.2016 at about 12:10 PM. On 16.12.2016, the penalty notice u/s 271(1)(b) of the Act was issued to the assessee to show-cause as to why penalty u/s 271(1)(b) of the I. T. Act, 1961 should not be levied. The assessee did not comply with the notice, therefore, the penalty to the tune of Rs.10,000/- was levied. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who confirmed the penalty, therefore, the assessee has filed the present appeal before us. 4. All the issues are in connection with the confirming of the penalty by the CIT(A). In brief, the penalty was levied on account of non- appearance of the assessee in pursuance of the notice u/s 142(1) of the Act Dated 06.04.2016 on 20.04.2016. The explanation of the assessee is that the assessment order was passed exparte and things happened on account of non-receipt of the notice. The other contention of the assessee is that the AO was not available in the office on the appointed day in time and the AO passed the exparte order u/s 144 and also levied the penalty wrongly. Be that as it may but it is apparent on record that the assessment order was ITA. No.1370/Mum/2020 A.Y. 2011-12 3 passed u/s 144 r.w. 147 of the I. T. Act, 1961 on dated 16.12.2016 when the penalty notice was issued. The assessment order was exparte. Copy of order nowhere speaks that when the service of notice was effected. Notice u/s 142(1) dated 06.04.2016 was issued for 20.04.2016. Nothing on record about the service of notice. The contention of the assessee is also that the assessee submitted the letter dated 22.03.2017 which was not taken into record. The penalty order was passed on 28.06.2017. The apprehension is that no service was effected upon the assessee and or before passing the order submission of the assessee was not taken into consideration. The assessee also made the complaint/ objection vide letter dated 18.02.2016 and 10.03.2017 which were nowhere considered. Moreover, we found that the case of the assessee was reopened on the basis of information received from the Sales Tax Department and DGIT of Investigation on account of bogus purchase. The AO raised the addition to the extent of 25% of the bogus purchase and the CIT(A) reduced the addition to the extent of 12.5% of the bogus purchase. The assessee had already paid the taxes. Since service is not on record and record reveals nowhere any correct position, therefore, we are of the view that the penalty is not justifiable, hence, we ordered to delete the penalty. 5. In the result, the appeal filed by the assessee is hereby allowed. Order pronounced in the open court on 30/11/2021 Sd/- Sd/- (SHAMIM YAHYA) (AMARJIT SINGH) लेखध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; ददनांक Dated : 30/11/2021 Vijay Pal Singh/Sr. PS ITA. No.1370/Mum/2020 A.Y. 2011-12 4 आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त(अपील) / The CIT(A)- 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदध, आयकर अपीलीय अदधकरण, मुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधिक िंजीकधर /(Dy./Asstt. Registrar) आिकर अिीलीि अनर्करण, मुंबई / ITAT, Mumbai