ITO-6(1)(2), MUMBAI V. M/S. AMOOLYA ENGINEERS P. TLD., MUMBAI

ITA 1481/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5799 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR LD
• Keywords: Bogus purchase; Tax effect
• Section: 271(1)(c); 143(3); 13

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMA R AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) 1 . ./ I.T.A. NO. 1481 / MUM/ 2020 ( / ASSESSMENT YEAR: 2009 - 10 ) ITO - 6(1)(2 ), R. NO. 508 , 5 TH FLOOR AAYAKAR BHAVAN, M. K. ROAD MUMBAI - 400 020 / VS. M/S AMOOLYA ENGINEERS PVT. L TD. 9A - 165, GROUND FLOOR TAHER MANSION, 16N , AGDEVI AREA, NARAYAN DHRU CROSS LANE MUMBAI - 400 003 ./ ./ PAN/GIR NO. AADCA - 0172 - F ( / APPELLANT ) : ( / RESPONDENT ) REVENUE BY : SHRI BRAJENDRA KUMAR, LD. DR ASSESSEE BY : NONE / DATE OF HEARING : 13/09 /2021 / DATE OF PRONOUNCEMENT : 13/09/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 2009 - 10 CONTEST THE ORDER OF LD. COMMISS IONER OF INCOME - TAX (APPEALS) - 12, MUMBAI [CIT(A)] DATED 18/12 /2019 WHICH HAS DELETED THE PENALTY OF RS.8,83,510 / - U/S 271(1)(C) AS LEVIED BY LD. AO VIDE PENALTY ORDER DATED 27/09/2018 . THOUGH NONE APPEARED FOR ASSESSEE, HOWEVER, THE MATERIAL ON RECORD WAS SUFFICIENT ENOUGH FOR DISPOSAL OF THE APPEAL. 2 2. THE ASSESSEE WAS ASSESSED U/S 143(3) R.W.S. 147 ON 09 /03/2015 WHEREIN IT WAS SADDLED WITH ESTIMATED ADDITION OF 12.5% ON ALLEGED BOGUS PURCHASES WHICH WAS FINALLY REDUCED TO 5% BY TRIBUNAL. CON SEQUENTLY, PENALTY PROCEEDINGS WERE INITIATED AND PENALTY OF RS.8.83 LACS WAS LEVIED BY LD. AO VIDE ORDER DATED 27/09/2018 . UPON FURTHER APPEAL , LD. CIT(A) DELETED THE SAME IN TERMS OF CERTAIN DECISION OF THE TRIBUNAL. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 3. IN OUR CONSIDERED OPINION, THE IMPUGNED ORDER WOULD NOT REQUIRE ANY INTERFERENCE ON OUR PART FOR TWO REASONS. FIRSTLY, THE ADDITIONS WERE MERELY ESTIMATED ADDITIONS FOR UNPROVED PURCHASES AND THEREFORE, NO CASE OF CONCEALMENT OF INCO ME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME COULD BE MADE OUT AGAINST THE ASSESSEE. SECONDLY, THE REVENUES APPEAL IS NOT MAINTAINABLE IN TERMS OF LATEST LOW TAX EFFECT CBDT CIRCULAR NO. 17/2019 DATED 08/08/2019 [F.NO.279/MISC. 142/2007 - TTJ(PT.) WHICH PRESCRIBES MINIMUM THRESHOLD LIMIT OF RS.50 LACS FOR REVENUE TO AGITATE THE MATTER FURTHER BEFORE TRIBUNAL. IT IS SETTLED LEGAL POSITION THAT QUANTUM PROCEEDINGS AND PENALTY PROCEEDINGS ARE INDEPENDENT AND DISTINCT PROCEEDINGS AND CONFIRMATION OF ADD ITIONS MAY NOT BE THE SOLE GROUND FOR CONFIRMING THE PENALTY. EXTENDING THE SAME LOGIC, UNLESS SPECIFIC EXCEPTION IS PROVIDED IN THE CIRCULAR WITH RESPECT TO PENALTY ALSO, IT COULD NOT BE CONSTRUED THAT THE PENALTY WAS TO BE TREATED AT PAR WITH QUANTUM ADD ITIONS. THE CLAUSE 10(E) SPECIFICALLY APPLIES ONLY TO ADDITIONS WHICH ARE BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES. THE LEVY OF PENALTY, BY NO STRETCH OF IMAGINATION, COULD BE CONSTRUED AS ADDITION AS ENVISAGED BY CLAUSE 10(E). THEREFORE, THE SU BMISSIONS MADE BY LD. DR COULD NOT BE HONORED AND WE DECLINE TO ACCEPT THE SAME. 3 4. RESULTANTLY, THE APPEAL STAND DISMISSED. ORDER PRONOUNCED ON 13 TH SEPTEMBER, 2021. SD/ - SD/ - (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 13/09/2021 SR.PS, DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RES PONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.