ITO 2(1)(1), MUMBAI V. ANJANI AGRICO IMPLEMENTS LTD, MUMBAI

ITA 1979/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8462 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 11-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAVIKIRAN
• Keywords: Non compliance
• Section: 271(1)(c); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT ASHA VIJAYARAGHA VAN (JM) ITA NO.1979/MUM/2010 (ASSESSMENT YEAR-2000-01) ITO 2(1)(1), AAYAKAR BHAVAN, MUMBAI-400 020 VS. M/S. ANJANI AGRICO IMPLEMENTS LTD., 28, APOLLO STREET, BOMBAY SAMACHAR MARG, FORT, MUMBAI-400 001 PAN-AABCA 1949A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K. RAVIKIRAN RESPONDENT BY: NONE O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. CIT(A)- 4, MUMBAI DATED 29.12.2009 FOR THE A.Y. 2000-01. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE THEREFOR E WE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND DISPOSE OF THE MATT ER EX PARTE ON MERIT. 3. IN THE PENALTY ORDER DT. 30.7.2004 THE ASSESSING OFFICER HAS HELD THAT ADDITION OF RS. 55,71,480/- WAS MADE IN THE ASSESSM ENT ORDER AS NO ONE APPEARED FOR THE ASSESSEE AND NO EXPLANATION WAS FI LED FOR THE AMOUNT OF RS. 55,71,480/- SHOWN IN THE BALANCE SHEET AS SUNDR Y CREDITORS. SINCE NO DETAILS WERE FILED, THE AMOUNT WAS TREATED AS CASH CREDIT U/S. 68 AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. LATER ON PENA LTY PROCEEDINGS WAS ALSO INITIATED AND SHOW CAUSE NOTICE WAS ISSUED TO THE A SSESSEE WHICH WAS SERVED ON THE ASSESSEE ON 23.3.2004. SINCE NO ONE REPRESENTED, THE AO HAS PRESUMED THAT ASSESSEE HAS NO EXPLANATION TO OFFER AGAINST THE CASH CREDITS ITA NO. 1979/1/10 2 OF RS. 55,71,480/-. ACCORDINGLY, AO LEVIED A PENAL TY OF 100% OF TAX SOUGHT TO BE EVADED WHICH AMOUNTS TO RS. 21,48,020/- 4. AGGRIEVED BY THE ORDER OF THE AO ASSESSEE PREFER RED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HELD AS FOLLOWS: I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE AUT HORIZED REPRESENTATIVE AND I FIND THAT THE ORIGINAL ASSESSM ENT WAS COMPLETED U/S. 144 AS THERE WAS NO COMPLIANCE FROM THE ASSESSEE. HOWEVER, THE CIT(A) CALLED FOR REMAND RE PORT AND THE AO HAS SUBMITTED THE REMAND REPORT TO THE CIT(A). CIT(A) AFTER CONSIDERING THE REMAND REPORT HAS DELETED THE ADDIT ION ON ACCOUNT OF CASH CREDIT U/S. 68. HE HAS ALSO DELETE D THE ADDITION ON ACCOUNT OF DISALLOWANCE OF BAD DEBT. SINCE THE ADDITIONS ON WHICH PENALTY U/S. 271(1)(C) HAS BEEN DELETED THERE IS NO CASE FOR LEVY OF PENALTY U/S. 271(1)(C). THE PENALTY LEVIED BY THE AO IS CANCELLED. 5. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), REVENU E PREFERRED AN APPEAL BEFORE US AND RAISED THE FOLLOWING GROUND: ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN FOR DELETING PENALTY OF RS. 21,48,0 20/- WITHOUT APPRECIATING THE FACT THAT THE ADDITIONS WERE MADE IN THE QUANTUM ASSESSMENT OWING TO NON COMPLIANCE ON THE P ART OF THE ASSESSEE IN DISCHARING THE ONUS CAST ON HIM BY LAW TO PROVE THE GENUINENESS OF THE TRANSACTIONS. 6. WE HEARD THE LD. DR AND PERUSED THE MATERIAL AVA ILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) HAS OBSERVED THAT IN TH E QUANTUM APPEAL THE CIT(A) HAD DELETED THE ADDITION ON ACCOUNT OF CASH CREDIT U/S. 68 AND ALSO DELETED THE ADDITION ON ACCOUNT OF DISALLOWANCE OF BAD DEBT. THE LD. DR CONFIRMED THAT THE DEPARTMENT HAS NOT GONE ON FURTH ER APPEAL TO THE TRIBUNAL AGAINST THE QUANTUM APPEAL. IN THESE CIRC UMSTANCES THE PENALTY IMPOSED BY THE AO U/S. 271 (1)(C) THUS NO MORE SURV IVES AS THE QUANTUM ITA NO. 1979/1/10 3 APPEAL HAS DELETED THE ADDITION AND IS IN FAVOUR OF THE ASSESSEE. THEREFORE THE PENALTY APPEAL LIABLE TO BE CANCELLED HAVING N O LEGS TO STAND. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON THIS 11 TH DAY OF FEBRUARY, 2011 SD/- SD/- (R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI, DATED 11 TH FEBRUARY, 2011. RJ COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CENTRAL - I CONCERNED 5. THE DR A BENCH TRUE COPY BY ORDER ASST. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 1979/1/10 4 DATE INITIALS 1 DRAFT DICTATED ON: 9.02.2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 9.02.2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: ______ 9 DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER: ______