PARLE BOTTING P. LTD, MUMBAI V. ACIT CEN CIR 25, MUMBAI

ITA 3381/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8148 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 1997-1998
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PURSHOTTAM KUMAR
• Assessee Lawyers: FIROZE ANDHYARUJINA
• Keywords: Unexplained cash credit

Judgement Text

P A G E | 1 ITA NO. 3381/MUM/2016 AY: 1997 - 98 PARLE BOTTLING PVT. LTD. VS. ACIT IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, M UMBAI BEFORE SHRI RAJENDRA , AM AND SHRI RAVISH SOOD, JM ITA NO. 33 81 /MUM/2016 ( / ASSESSMENT YEAR: 1997 - 98 ) PARLE BOTTLING PVT. LTD (NOW KNOWN AS PARLE AGRO PVT. LTD), WESTERN EXPRESS HIGHWAY, CHAKALA ANDHERI (E), MUMBAI 400 099. / VS. ACIT, CENTRAL CIRCLE 25; MUMBAI ./ ./ PAN NO. AAACP8416G ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : SH. FIROZE ANDHYARUJINA, A.R / RESPONDENT BY : SH. PURSHOTTAM KUMAR, D.R / DATE OF HEARING : 21 .12.2017 / DATE OF PRONOUNCEMENT : 21 .12.2017 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEAL IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 17 , MUMBAI, DATED 29 .02.2016, WHICH IN ITSELF ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC. 271(1)(C) OF THE INCOME - TAX ACT, 1961(FOR SHORT ACT), DATED 29.03.2014 . THE ASSESSEE ASSAILING THE P A G E | 2 ITA NO. 3381/MUM/2016 AY: 1997 - 98 PARLE BOTTLING PVT. LTD. VS. ACIT ORDER OF THE CIT(A) HAD RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL: - I . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER AND CONFIRMING PENALTY OF RS. 11,29,130/ - WHICH WAS LEVIED ON QUANTIFIED ADDITION MADE ON ACCOUNT OF DEPOSIT ACCEPTED IN RESPE CT OF BOTTLES AND CRATES OF RS. 26,26,302/ - . THE ADDITIONS MADE ON ACCOUNT OF CRATES AND BOTTLES DEPOSIT WERE NOT CAUGHT BY THE MISCHIEF OF SECTION 271(1)(C). 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEA L EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY WHICH IS ENGAGED IN THE BUSINESS OF BOTTLING OF SOFT DRINKS, MANUFACTURING OF AGRO BASED PROD UCTS AND TRADING OF SOFT DRINKS H AD FILED ITS RETURN OF INCOME FOR A.Y. 1997 - 98 ON 28.11.1997, DECLARING NIL INCOME. THE RETURN OF INCOME OF THE ASSESSEE WAS THEREAFTER TAKEN UP FOR SCRUTINY ASSESSMENT UNDER SEC. 143(2), WHEREIN THE A.O OBSERVING THAT AS THE ASSESSEE DESPITE SUFFICIENT OP PORTUNITY HAD FAILED TO CONFIRM THE LIABILITY OF RS. 53,82,923/ - SHOWN IN THE NAME OF M/S PARLE SALES AND SERVICES LTD IN ITS BOOKS OF ACCOUNT DURING THE YEAR UNDER CONSIDERATION, THEREFORE, CONCLUDED THAT THE SAME WAS NOT A GENUINE LIABILITY AND MADE AN A DDITION OF THE SAID AMOUNT AS AN UNEXPLAINED CREDIT TO THE RETURNED INCOME OF THE ASSESSEE. THAT ON APPEAL THE CIT(A) ALLOWED A RELIEF OF RS. 27,56,621/ - AND RESTRICTED THE ADDITION TO R S . 26,26,302/ - . THE A.O WHILE FRAMING THE ASSESSMENT INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME UNDER SEC. 271(1)(C) IN THE HANDS OF THE ASSESSEE. 3. THE A.O AFTER THE CULMINATION OF THE ASSESSMENT PROCEEDINGS CALLED UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY PENALTY UNDER SEC. 271(1)(C) AS REGARDS THE UNEXPL AINED CREDITS OF R S . 26,26,302/ - MAY NOT BE IMPOSED IN ITS HANDS. THE ASSESSEE FURNISHED AN EXPLANATION AND SUBMITTED BEFORE THE A.O THAT NO PENALTY UNDER SEC. 271(1)(C) P A G E | 3 ITA NO. 3381/MUM/2016 AY: 1997 - 98 PARLE BOTTLING PVT. LTD. VS. ACIT WAS CALLED FOR IN ITS HANDS, AS WELL AS ALTERNATIVELY AVERRED THAT AS THE ORDER OF THE CIT(A) HAD BEEN CARRIED IN APPEAL BEFORE THE TRIBUNAL, THEREFORE, THE PENALTY PROCEEDINGS MAY BE KEPT IN ABEYANCE TILL THE DISPOSAL OF THE APPEAL. HOWEVER, THE A.O NOT BEING PERSUADED BY THE SUBMISSIONS OF THE ASSESSEE, THEREIN PROCEEDED WITH THE PENALTY PROCEEDINGS AND IMPOSED A PENALTY OF RS. 11,29,310/ - UNDER SEC. 271(1)(C). THE ASSESSEE ASSAILED THE PENALTY IMPOSED BY THE A.O UNDER SEC. 271(1)(C) BEFORE THE CIT(A), WHO VIDE HIS ORDER DATED 29.02.2016 DISMISSED THE APPEAL. 4. AGGRIEVED, THE ASSESSEE AS SAILED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. THAT AT THE VERY OUTSET OF THE HEARING OF THE APPEAL, THE LD. AUTHORISED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE SUBMITTED THAT THE CROSS APPEALS FILED BOTH BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDER OF CIT(A) PASSED IN THE QUANTUM APPEAL HAD BEEN DISPOSED OF BY THE TRI BUNAL, VIZ. ITAT C BENCH, MUMBAI, VIDE ITS ORDER DATED. 28.10.2016 (COPY PLACED ON RECORD), WHEREIN THE APPEAL OF THE ASSESSEE WAS ALLOWED, WHILE FOR THAT OF THE REVENUE WAS DISMISSED. IT WAS THUS AVERRED BY THE LD. A.R THAT NOW WHEN THE ADDITION OF RS. 26,26,302/ - SUSTAINED BY THE CIT (A) HAD BEEN DELETED, THEREFORE , NOW WHEN THE VERY BASIS FOR IMPOSITION OF PENALTY UNDER SEC. 271(1)(C) DID NOT SURVIVE , THE PENALTY IMPOSED BY THE A.O COULD NOT BE SUSTAINED . PER CONTRA, THE AFORESAID CONTENTION OF THE LD. A.R. WAS NOT CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R). 5. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. WE HAVE PERUSED TH E ORDER OF THE TRIBUNAL, VIZ. ITAT C BENCH, MUMBAI, DATED. 28.10.2016 PASSED IN ITA NO. 3344/MUM/2016 AND FIND THAT THE ADDITION OF RS. 2 6,26,302/ - SUSTAINED BY THE CIT(A) HAD BEEN DELETED WHILE ALLOWING THE APPEAL OF P A G E | 4 ITA NO. 3381/MUM/2016 AY: 1997 - 98 PARLE BOTTLING PVT. LTD. VS. ACIT THE ASSESSEE. WE FURTHER FIND THAT T HE ORDER OF THE CIT(A) DELETING THE ADDITION TO THE EXTENT OF RS. 27,56,621/ - WAS UPHELD BY THE TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE, VIZ. ITA NO. 3689/MUM/2013. WE ARE OF THE CONSIDERED VIEW THAT NOW WHEN THE ADDITION OF RS. 26,26,302/ - UPH ELD BY THE CIT(A) HAD BEEN DELETED BY THE TRIBUNAL WHILE ALLOWING THE APPEAL OF THE ASSESSEE AND HIS ORDER DELETING THE ADDITION OF RS. 27,56,621/ - HAD BEEN UPHELD BY THE TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE, THEREFORE, THE VERY BASIS FOR IM POSITION OF PENALTY OF RS.11,29,310/ - U/S 271(1)(C) DOES NOT SURVIVE ANY MORE . WE THUS SET ASIDE THE ORDER OF THE CIT(A) AND QUASH THE PENALTY OF RS. 11,29,310/ - IMPOSED ON THE ASSESSEE UNDER SEC. 271(1)(C) OF THE ACT. 6. THE APPEAL OF THE ASSES SEE IS ALLOWED. ORDER PRONO UNCED IN THE OPEN COURT ON 21. 12.2017 SD/ - SD/ - ( RAJENDRA ) ( RAVISH SOOD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 21 .12 .2017 PS. ROHIT KUMAR P A G E | 5 ITA NO. 3381/MUM/2016 AY: 1997 - 98 PARLE BOTTLING PVT. LTD. VS. ACIT / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI