ITO 9(3)(3), MUMBAI V. FOURCEE EQUIPMENTS & SERVICES P.LTD, MUMBAI

ITA 4420/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0820 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 23-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BISTDR

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4420/MUM/2015 ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER-9(3)(3), R. NO.471, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 / VS. M/S FOURCEE EQUIPMENTS & SERVICES PVT. LTD. 329, LAXMI MALL, LAXMI INDUSTRIAL ESTATE, NEW LINK ROAD, ANDHERI(W), MUMBAI-400053 ( / REVENUE) ( #$% /ASSESSEE) P.A. NO. AAACF2512R / REVENUE BY SHRI B.S.BIST-DR #$% / ASSESSEE BY NONE & ' ( ) / DATE OF HEARING : 08/05/2017 ( ) / DATE OF ORDER: 09/05/2017 M/S FOURCEE EQUIPMENTS & SERVICES PVT. LTD. ITA NO.4420/MUM/2015 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 24/03/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, BY DELETING PENALTY OF RS.15 LAKH IMPOSED U/S 271E OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) HOLDING THAT THE AMOUNT RECEIVED BY THE ASSESSEE WAS NOT IN THE NATU RE OF LOAN OR DEPOSIT, IGNORING LACK OF EVIDENCE BROUGHT ON RECORD TO EVIDENCE THAT THE AMOUNT WAS RECEIVED AS ADVANCE . 2. DURING HEARING, NONE WAS PRESENT FOR THE ASSESSEE FOR THE ASSESSEE. THIS APPEAL WAS FILED BY THE REVENUE ON 23/07/2015 FOR WHICH REGISTERED NOTICES OF HEARING WERE SENT TO BOTH SIDES ON 06/04/2017, THE APPEAL WAS ADJOURNED FOR TODAY AND BOTH THE PARTIES WERE INFORMED. TODAY, AT THE TIME OF HEARING, THE ASSESS EE NEITHER PRESENTED ITSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE HAS NOTHING TO SAY AND THE APPEAL CANNOT BE KEPT PENDING INDEFINITELY, THE REFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE AND TEND TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SHRI B.S. BIST LD. DR , DEFENDED THE IMPOSITION OF PENALTY BY ADVANCING ARGUMENTS, WHICH IS IDENTICAL TO THE GROUND RAISED. 2.1. WE HAVE CONSIDERED THE ARGUMENTS OF THE LD. D R AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN M/S FOURCEE EQUIPMENTS & SERVICES PVT. LTD. ITA NO.4420/MUM/2015 3 BRIEF, ARE THAT M/S DHANANJAY CONTAINERS, AT THE RE LEVANT TIME, WAS THE CUSTOMER OF THE ASSESSEE COMPANY AND WAS PURCHASING MOLASSES. THE ASSESSEE COMPANY WAS HOLD ING CERTAIN STOCK OF MOLASSES, AS ON 01/04/2009, BEING LEFT OUT OF ITS PROCUREMENT FOR EXPORT AND IT WAS DECIDED TO SALE THE SAME IN DOMESTIC MARKET. THE ASSESSEE RECEIVED RS.83,10,968/- AS ADVANCED, FOR SUPPLY OF MOLASSES FROM M/S DHANANJAY CONTAINERS. HOWEVER, THE CUSTOMER REJECTED THE QUALITY OF EXISTING STOCK AS THE SAME WAS NOT FOUND TO BE SUITABLE TO THE END USER/CUSTOMERS. THU S, THE SAID ADVANCE WAS REFUNDED BACK IN THE FINANCIAL YEA R 2010-11 AND THE PAYMENT OF RS.15 LAKH WAS PART OF S UCH REPAYMENT, RECEIVED AS ADVANCED BY THE ASSESSEE COM PANY. HOWEVER, THE LD. ASSESSING OFFICER HELD THE ASSESSE E GUILTY OF VIOLATION OF SECTION 269T OF THE ACT. AS PER THE REVENUE, THE ASSESSEE HAD SHOWN THE REPAID AMOUNT TO M/S DHANANJAY CONTAINER IN CASH, THEREFORE, PENALTY U/S 271E OF THE ACT, AMOUNTING TO RS.15 LAKH, WAS LEVIED. 2.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE SUBMISSIONS OF THE ASSESSE E WERE CONSIDERED AND FINALLY IT WAS FOUND FROM THE BALANC E SHEET AND TAX AUDIT REPORT THAT THE SUM OF RS.83,10,968.9 0/- WAS RECEIVED BY THE ASSESSEE AS ADVANCE FROM ITS CUSTOMERS M/S DHANANJAY CONTAINERS AND FROM THIS ADVANCE, THE AMOUNT OF RS.15 LAKH WAS REPAID ON 03/06/2010. THE LD. COMMISSIONER OF INCOME TAX (APP EAL) CONSIDERED THE DECISION IN CHAUBEY OVERSEAS CORPORA TIONS M/S FOURCEE EQUIPMENTS & SERVICES PVT. LTD. ITA NO.4420/MUM/2015 4 VS CIT (2008) 170 TAXMAN 9 ALONG WITH THE DECISION FROM HON'BLE GUJARAT HIGH COURT CIT VS MADHAV ENTERPRISE S (P.) LTD. (2013) 356 ITR 588 (GUJ.) AND HELD THAT ADVANC ES RECEIVED FROM CUSTOMERS CANNOT BE TREATED AS DEPOSI TS FOR THE PURPOSES OF SECTION 269T OF THE ACT. THE PENALT Y WAS DELETED. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS TRIBUNAL. ON PERUSAL OF RECORD AND AFTER HEARI NG THE SUBMISSIONS OF LD. DR, WE ARE IN AGREEMENT WITH THE UNCONTROVERTED FINDING THAT THE DEPARTMENT HAS ACCE PTED THAT THE SUM OF RS.83,10,968/- WAS RECEIVED AS ADVA NCE FROM CUSTOMERS IN EARLIER YEARS, THEREFORE, WE FIND NO INFIRMITY IN THE CONCLUSION OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AS THE FIRST APPELLATE AUTHORIT Y HAS DULY CONSIDERED THE AFORESAID DECISIONS FROM HON'BL E HIGH COURTS. NO ADVERSE MATERIAL WAS BROUGHT TO OUR NOTI CE BY THE REVENUE IN SUPPORT OF ITS CLAIM, THEREFORE, THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IS AFFI RMED. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/05/2017 SD/- SD/- ( ASHWANI TANEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & ' MUMBAI; + DATED : 09/05/2017 F{X~{T? P.S/. .. M/S FOURCEE EQUIPMENTS & SERVICES PVT. LTD. ITA NO.4420/MUM/2015 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 & 3 ( - ) / THE CIT, MUMBAI. 4. 2 2 & 3 / CIT(A)- , MUMBAI 5. 56 0# , 2 -) # 7 , & ' / DR, ITAT, MUMBAI 6. 8$ ' / GUARD FILE. / BY ORDER, 15- 0 //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI