M.R. CONSTRUCTOIN, MUMBAI V. ASST CIT CEN CIR 22 & 30, MUMBAI

ITA 1493/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0524 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 17-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.1493 /MUM/2016 (ASSESSMENT YEAR: 2006-07) M/S. M.R. CONSTRUCTION VS. ACIT, CENTRAL CIRCLE - 22 & 30 SHOP NO. 1, SHIVAJI CHAWL DEVIPADA, W.E. HIGHWAY BORIVALI (E), MUMBAI 400066 MUMBAI PAN AAOFM9021D APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI T.A. KHAN DATE OF HEARING: 05.07.2017 DATE OF PRONOUNCEMENT: 08.08.2017 O R D E R PER D.T. GARASIA, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-51, MUMBAI DATED 17.12.2015 FOR A.Y. 2006-07 . 2. THE ONLY GROUND RAISED BY THE ASSESSEE IS AGAINST T HE CONFIRMATION OF PENALTY BY THE CIT(A) OF ` 74,052/- LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 BY THE AO. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMEN T UNDER SECTION 153 OF THE INCOME TAX ACT WAS MADE BY ADDING THE FO LLOWING CREDITS UNDER SECTION 68 AS THE ASSESSEE DID NOT SUBMIT THE CONFI RMATION LETTERS FROM THE FOLLOWING PARTIES: - 1. PAWANI PUROHIT ` 1,95,000/- 2. DEEPAK ` 25,000/- ITA NO. 1493/MUM/2016 M/S. M.R. CONSTRUCTION 2 THE ASSESSEE DID NOT PRODUCE THE CONFIRMATION LETTE RS BEFORE THE CIT(A) AND EVEN DURING THE PENALTY PROCEEDINGS. THEREFORE, THE AO HAS LEVIED PENALTY OF ` 74,052/- UNDER SECTION 271(1)(C). THE MATTER WAS CA RRIED TO THE CIT(A) AND THE CIT(A) HAS CONFIRMED THE ACTION OF THE AO. 4. WE HAVE HEARD THE LEARNED D.R. AND CAREFULLY PERUS ED THE RECORD. THE ASSESSEE DID NOT REMAIN PRESENT BEFORE US. WE H AVE GONE THROUGH THE ORDERS OF THE CIT(A) AND WE FIND THAT IN THE CASE O F DEEPAK THE LOAN OUTSTANDING WAS RS.25,000/- AND IN THE CASE OF PAWA NI PUROHIT PA NUMBER IS SHOWN AND NO CONFIRMATION LETTER WAS FILE D. BEFORE THE CIT(A) THE ARGUMENT OF THE ASSESSEE WAS THAT CONFIRMATION LETTER COULD NOT BE FILED AS MRS. PAWANI PUROHIT WAS EXPIRED. THE CIT(A ) HAS ALSO HELD THAT THOUGH MRS. PUROHIT, EXCEPT A DEATH CERTIFICATE NO FURTHER DETAILS WERE FILED. WE FIND THAT THE ISSUE IN CONTROVERSY IS COV ERED BY THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF NATIONAL TEXTILES VS. CIT 249 ITR 125 WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT NO PENALTY ON CONCEALMENT OF INCOME UNDER SECTION 68 IF THE ASSES SEE GIVE EXPLANATION THAT THE CASH CREDIT REPRESENT TEMPORARY LOAN AND C IRCUMSTANCES DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSESSEES CASE IS FALSE. THE HON'BLE HIGH COURT HAS ALSO HELD THAT IN THE PENALTY PROCEEDING THE DEPARTMENT HAS TO PROVE THAT THE LOAN TAKEN BY THE ASSESSEE WERE BOGUS. SINCE THE DEPARTMENT COULD NOT PROVE THIS, R ELYING UPON THE DECISION OF THE HON'BLE HIGH COURT WE DELETE THE PE NALTY 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH AUGUST, 2017. SD/ - SD/ - (P.K. BANSAL) (D.T. GARASIA) VICE PRESIDENT JUDICIAL MEMBER MUMBAI, DATED: 8 TH AUGUST, 2017 ITA NO. 1493/MUM/2016 M/S. M.R. CONSTRUCTION 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -51, MUMBAI 4. THE PR. CIT, CENTRAL-2, MUMBAI 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.