ITO WD 3(3), KALYAN V. MALLINATH SHIVAPPA HALIMANI, DOMBIVALI

ITA 2018/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5982 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 05-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Keywords: Bogus purchase; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 2018 /MUM/2019 ASSESSMENT Y EAR: 2011 - 12 THE ITO WARD 3(3), 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN WEST - 421301 VS. SHRI MALLINATH SHIVAPPA HALIMANI, 401, OM SAI APARTMENT, DINDAYAL ROAD, ANAND NAGAR, DOMBIVLI EAST - 421201 PAN: AADPH3180P (APPELLANT) (RESPONDENT) REVENUE BY : SHRI V. VINOD KUMAR (D R ) ASSESSEE BY : NONE DATE OF HEARING: 10 /09 /2020 DATE OF PRONOUNCEMENT: 11 / 09 /2020 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 15.01.2019 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 (FOR SHORT THE CIT(A) , THANE, FOR THE ASSESSMENT YEAR 2011 - 12 , 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 TAX ACT, 1961 (FOR SHORT THE ACT) AND DELETED THE PENALTY IMPOS ED BY THE AO . 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUND S : - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE PEN ALTY LEVIED U/S 271 (1) (C) WITHOUT PROPERLY 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 DECISION IN THE CASE OF N.K. PROTEINS LTD., TAX AP PEAL NO. 242 OF 2003 DATED 20/06/2016 AGAINST WHICH 2 ITA NO . 2018 / MUM/2019 ASSESSMENT YEAR: 2011 - 12 THE SLP 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 M AHARASHTRA 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 APPRECIATING THE FACT THAT THERE WAS A DEFIN ITE 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 APPEAL 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. THIS CASE WAS FIXED FO R HEARING ON 10.09.2020. HOWEVER, WHEN THE CASE WAS CALLED OUT FOR HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE. WE NOTICE D 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 CIRCUL AR 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 PRESENT APPEAL IS NOT MAINTAINABLE. WE ACCORDINGLY DECIDED TO DISPOSE OF THE PRESENT APPEAL AFTER HE ARING THE DEPARTMENTAL REPRESENTATIVE (DR). 4 . THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY ADMITTED THAT TH IS APPEAL IS NOT MAINTAINABLE IN LIGHT OF THE CIRCULAR AFORESAID ISSUED BY THE CBDT, 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 ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AN D THE GROUNDS OF APPEALS. T HE TAX EFFEC T IN THIS APPEAL IS LESS THAN RS. 5 0 LACS. ACCORDINGLY, W E DISMISS THE 3 ITA NO . 2018 / MUM/2019 ASSESSMENT YEAR: 2011 - 12 PRESENT APPEAL FILED BY THE REVENUE AS NOT MAINTAINABLE/WITHDRAWN . HOWEVER, IN CASE, IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS P ROVIDED IN THE CIRCULAR OR OTHERWISE MAINTAINABLE, THEN THE REVENUE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER OF THE TRIBUNAL FOR DECIDING THE APPEAL AFRESH ON MERITS. IN THE RESULT, APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2011 - 2012 IS DISMISSED. ORDER PRONOUNCED ON 11 TH SEPTEMBER , 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 11 / 0 9 / 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