DY.CITI -26(1) , MUMBAI V. GOPAL TUKIRAM AGARWAL, MUMBAI

ITA 2346/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1143 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 14-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘SMC‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No.2346/Mum/2021 (Assessment Year :2010-11) & ITA No.2347/Mum/2021 (Assessment Year :2009-10) Dy. Commissioner of Income Tax-26(1) Room No.623, 6 th Floor Kautilya Bhavan Bandra Kurla Complex Bandra East Mumbai – 400 051 Vs. M/s. Gopal Tukiram Agarwal 3/13, Mankhu Bhavan Khandwala Lane Malad (East) Mumbai - 400097 PAN/GIR No.AACPA8314P (Appellant) .. (Respondent) Revenue by Ms. Samruddhi Hande Assessee by Shri Vijay R Taker Date of Hearing 24/05/2022 Date of Pronouncement 26/05/2022 आदेश / O R D E R PER M. BALAGANESH (A.M): These appeals in ITA No.2346/Mum/2021 & 2347/Mum/2021 for A.Y.2009-10 & 2010-11 arise out of the order by the ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) in order No.ITBA/NFAC/S/250/2021-22/1036536616(1) & ITBA/NFAC/S/250/2021- 22/1036536632(1) dated 22/10/2021 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(c) of the Income Tax Act (hereinafter referred to as ‘Act’). 2. We have heard rival submissions and perused the material available on record. We find that the ld. AO had levied penalty on the estimated ITA No.2346 & 2347/Mum/2021 Shri Gopal Tukiram Agarwal 2 addition made on account of bogus purchases. This penalty levied u/s.271(1)(c) of the Act on an addition made on account of bogus purchases was deleted by the ld. CIT(A) on the primary ground that no penalty would survive on an estimated addition. Aggrieved, the revenue is in appeal before us. 3. We find at the outset, the ld AR argued that penalty that is in dispute before us, falls below the monetary limit prescribed by the CBDT in its Circular No. 17/2019 dated 08/08/2019 for preferring appeal by the Revenue before this Tribunal. We find that the ld. DR vehemently argued that the said case falls within the exception provided in para 10(e) of the said Circular and accordingly, he argued that the appeal is maintainable. We find that the exception provided in para 10(e) of the Circular 17/2019 dated 08/08/2019 is applicable only for the quantum proceedings and the same cannot be made applicable for penalty proceedings. It is well settled that penalty and quantum assessment proceedings are distinct and separate. Accordingly, we dismiss this appeal of the Revenue by following the aforesaid Circular No.17/2019 dated 08/08/2019. Even on merits, we find that the ld. CIT(A) had deleted the penalty only in view of estimated addition. The law is well settled that no concealment penalty would be leviable on an estimated addition. 4. In the result, appeals of the Revenue are dismissed. Order pronounced on 26/05/2022 by way of proper mentioning in the notice board. Sd/- (PAVAN KUMAR GADALE) Sd/- (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 26/05/2022 KARUNA, sr.ps ITA No.2346 & 2347/Mum/2021 Shri Gopal Tukiram Agarwal 3 Copy of the Order forwarded to : BY ORDER, (Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//