REGRIGERATED DISTRIBUTORS P.LTD, MUMBAI V. DCIT 2(3)(1), MUMBAI

ITA 4512/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0342 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 01-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS VINITA MENON; B PRUSETH
• Assessee Lawyers: RAJIV WAGLE
• Keywords: Bogus purchase; Wrong claim
• Section: 133(6); 147; 131

Judgement Text

P AGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI R.C SHARMA , AM AND SHRI RAVISH SOOD, JM ./ I.T.A. NO (S) . 451 2 - 451 6 /MUM/201 6 ( / ASSESSMENT YEAR (S) : 200 7 - 0 8 TO 2010 - 11 & 2012 - 13 ) REFRIGERATED DISTRIBUTORS P. LTD. 410 EMCA HOUSE, SHAHID BHAGAT SINGH ROAD, FORT , MUMBAI - 400 00 1 / VS. DCIT 2(3)(1), AAYKA R BHAWAN, M.K ROAD, MUMBAI 400 0 20 ./ ./ PAN/GIR NO. AABCR1479A ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI. RAJIV WAGLE / RESPONDENT BY : SHRI.B. PRUSETH, CIT D.R & MRS. VINITA MENON / DATE OF HEARING : 05.04.2017 / DATE OF PRONOUNCEMENT : 07 .05.2017 / O R D E R PER RAVISH SOOD, J UDICIAL MEMBER : THE PRESENT APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE CIT(A) FOR A.Y. 2007 - 08 TO A.Y. 201 0 - 1 1 , AND A.Y. 2012 - 13, DATED 25.05.2016, WHICH IN ITSELF ARISES FROM THE RESPECTIVE ORDERS PASSED BY THE A.O UNDER SEC. 271(1)(C) OF THE INCOME - TAX ACT, 1961 (FOR SHORT ACT) , EACH DATED. 30.09.2015 . THAT AS COMMON ISSUES ARE INVOLVED IN ALL THE APPEALS, THEREFORE, FOR THE SAKE OF CONVENIENCE THEY ARE CLUBBED AND DISPOSED OF IN THIS CONSOLIDATED ORDER. WE HEREIN FIRST TAKE UP THE APPEAL FOR A.Y. 2007 - 08, MARKED AS P AGE | 2 ITA NO. 451 2 /MUM/2016, WHEREIN THE A SSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL: - ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 6 ERRED IN CONFIRMING THE PENALTY OF RS. 2 8,27,035 / - IMPOSED BY THE ASSESSING OFFICER ON THE BASIS OF ADDITI ONS MADE IN THE ASSESSMENT ORDER DATED. 26.03.2015 WITHOUT CONSIDERING THE FACT THAT THERE WAS NO MALAFIDE INTENTION ON THE PART OF THE APPELLANT IN RESPECT OF THOSE ADDITIONS. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY OR DELETE ALL OR ANY OF TH E GROUNDS OF APPEAL. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY WHICH IS ENGAGED IN THE SEA FOOD BUSINESS AND EXPORTS SEA FOOD PRODUCTS , MAINLY SURIMI , A PRODUCT MADE FROM FRESH FISH, HAD FILED ITS RETURN OF INCOME ON 29. 10 .200 7 DECLARING TOTAL INCOME OF RS. 1,55,29,590 / - , WHICH WAS PROCESSED AS SUCH U/S 143(1) OF THE ACT. 3. THAT THE A.O WHILE FRAMING THE ASSESSMENT FOR A.Y. 2011 - 12, THEREIN GATHERED INFORMATION THAT THE ASSESSEE HAD BOOKED PURCHASES FROM CERTAIN PARTIES WITHOUT PURCHASE BILLS/DELIVERY CHALLANS IN A.Y. 200 7 - 0 8 , AS FOLLOWS: - SR. NO. NAME OF THE PARTIES AMOUNT (IN RS.) 1. SUHANA SEA FOODS 34,05,351 / - 2. PARKER FISH E RIES 3,47,798 / - 4. BEST SEA FOOD 1,66,63,230/ - TOTAL 2,04,16,379 / - P AGE | 3 THE A.O ON THE BASIS OF THE AFORESAID INFORMATION REOPENED THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2007 - 08 UNDER SEC. 147 OF THE ACT. 4. TH AT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O AFTER MAKING NECESSARY VERIFICATIONS OBSERV ED THAT IT REMAINED AS A MATTER OF FACT THAT THE PURCHASES OF FISH OF RS. 2,04,16,379/ - (SUPRA) CLAIMED BY THE ASSESSEE TO HAVE BEEN MADE FROM THE AFORESAID PARTIES, WERE HOWEVER NOT SUPPORTED BY PURCHASE BILLS , I NVOICES AND DELIVERY CHALLANS. THE A.O THUS DOUBTING THE GENUINENESS OF THE AFORESAID PURCHASES OF RS. 2,04,16,379/ - (SUPRA), THEREIN CALLED UPON THE ASSESSEE TO PUT FORTH AN EXPLANATION AND SUBSTANTIATE THE GENUINENESS OF THE SAME. THE ASSESSEE IN ORDER TO SUPPORT THE GENUINENESS OF THE AFORESAID PURCHASES OF RS. 2,04,16,379/ - (SUPRA) , THEREIN SUBMITTED THAT A SIMILAR DISALLOWANCE MADE BY THE A.O IN ITS CASE FOR A.Y. 2011 - 12 , BY TREATING THE PURCHASES MADE FROM THE ABOVE MENTIONED PARTIES, AS BOGUS, WAS HOWEVER ON APPEAL DELETED BY THE CIT(A) . THE ASSESSEE SUBMITTED BEFORE THE A.O THAT THE CIT(A) WHILE DISPOSING OF ITS APPEAL FOR A.Y. 2011 - 12, AFTER THOROUGHLY PERUSING THE LEDGER ACCOUNTS AND AFFIDAVITS OF THE ABOVEMENTIONED RESPECTIVE PARTIES, HAD TH EREIN CONCLUDED THAT THE GENUINENESS OF THE PURCHASES MADE BY THE ASSESSEE FROM THE AFORE SAID PARTIES COULD NOT BE DOUBTED , AND HAD DELETED THE ADDITION WHICH WAS MADE BY THE A.O BY HOLDING OTHERWISE. THE ASSESSEE THUS TAKING SUPPORT OF THE ORDER OF THE C IT(A) PASSED IN ITS CASE FOR A.Y. 2011 - 12, THUS SUBMITTED THAT NO ADVERSE INFERENCES IN RESPECT OF THE GENUINENESS OF THE PURCHASES MADE FROM THE SAME PARTIES COULD BE DRAWN DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE FURTHER SUBMITTED BEFORE THE A.O THAT AS ITS CASE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2007 - 08 WAS REOPENED ON THE BASIS OF THE ADDITIONS MADE BY THE A.O ON ACCOUNT OF ALLEGED UNPROVED PURCHASES FROM THE AFORESAID PARTIES IN A.Y. 2011 - 12, WHICH HOWEVER P AGE | 4 HAD BEEN SET ASIDE BY THE CIT(A) IN APPEAL, THEREFORE THE VERY BASIS FOR REOPENING OF ITS CASE DID NOT SURVIVE. 5. THE A.O IN ORDER TO VERIFY THE GENUINENESS OF THE AFORESAID PURCHASES OF RS. 2 , 04 , 16,379/ - (SUPRA) , ISSUED NOTICES U/S 133(6) TO THE AFORESAID RESPECTIVE PARTIES . IT WAS OBSERVED BY THE A.O THAT AS THE NOTICES WERE NOT RETURNED BACK AND THUS COULD SAFELY BE CONCLUDED TO HAVE BEEN SERVED , HOWEVER NO REPLY WAS RECEIVED FROM EITHER OF THE AFORESAID PART IES . THE A.O BROUGHT THE SAID FACT T O THE NOTICE OF THE ASSESSEE AND D IRECTED HIM TO CONTACT THE SAID PARTIES AND GET COMPLIANCE TO THE NOTICES A FFECTED , HOWEVER ALL HIS EFFORTS REMAINED FUTILE AND NO REPL Y WAS RECEIVED FROM EITHER OF THE AFORESAID PARTIES . 6 . THE A.O IN THE BACKDROP OF THE AFORESAID FACTUAL MATRIX CALLED UPON THE ASSESSEE TO PUT FORTH AN EXPLANATION AS TO WHY IN THE ABSENCE OF THE CONFIRMATION S FROM THE AFORESAID SUPPLIER PARTIES , IT MAY NOT BE CONCLUDED THAT EITHER THE SAID PARTIES WERE BOGUS , OR THE SAID PURCHASE TRANSACTION S ITSELF WERE NON GENUINE , AND AN ADDITION IN RESPECT OF GROSS PROFIT RELATABLE TO SUCH BOGUS PURCHASES MAY NOT BE MADE. THE ASSESSEE HOWEVER CHOSE NOT TO REPLY TO EITHER OF THE AFORESAID QUERIES OF THE A.O. THE A.O THUS PR OCEEDED WITH AND CHARACTERIZED THE UNVERIFIED PURCHASES OF RS. 2,04,16,379/ - (SUPRA) AS BOGUS, BUT AT THE SAME TIME DID NOT DOUBT OR DISLODGE THE CORRESPONDING SALES, WHICH WERE ACCEPTED AS SUCH. THE A.O FURTHER HELD THAT AS THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE INFESTED WITH BOGUS PURCHASES AND COULD NOT BE HELD AS RELIABLE , THUS REJECTED THE SAME. THE A.O AFTER REJECTING THE BOOKS OF ACCOUNTS OF THE ASSESSEE, THEREIN ESTIMATED THE GP RATE IN RESPECT OF THE BOGUS PURCHASES OF RS. 2,04,16,739/ - (SUPR A) AT 25% , AND MADE A CONSEQUENTIAL ADDITION OF RS. 51,04,185/ - (I.E 25% OF RS. 2,04,16,739/ - ) TO THE RETURNED INCOME OF THE ASSESSEE . THE A.O WHILE CULMINATING THE ASSESSMENT P AGE | 5 PROCEEDINGS INITIATED PENALTY PROCEEDINGS UNDER SEC. 271(1)(C) FOR CONCEALMENT O F INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. 7. THE ASS ESSEE BEING AGGRIEVED WITH THE ASSESSMENT ORDER , THEREIN ASSAILED THE SAME BEFORE THE CIT(A) - 6, MUMBAI. THE CIT(A) HOWEVER DID NOT FIND FAVOR WITH THE CONTENTIONS OF THE ASSESSEE AND SUSTAINED THE ADDITION MADE BY THE A.O. 8. THE ASSESSEE CHALLENGED THE DISMISSAL OF ITS QUANTUM APPEAL, BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ITS CONSOLIDATE ORDER PASSED IN ITA NO(S). 2984 TO 2988/MUM/ 2016; DATED. 13.01.2017, THEREIN RESTRICTED THE GP RATE ON UNPROVED PURCHASES AT 10%, BY OBSERVING AS UNDER: - 11. FROM THE ABOVE DATA SUPPLIED BY THE ASSESSEE, IN ASSESSES OWN CASE, THE GROSS PROFIT RATIO FROM 8.90% TO 21.96%. QUA THE UNPROVED PURCHASES, THE AO APPLIED GP RATE O F OVER 25% OVER AND ABOVE THE DECLARED GP RATE. WE ARE OF THE VIEW THAT THE AOS ACTION IS UNREASONABLE BECAUSE THAN THE GROSS PROFIT WILL JUMP TO EVEN 40%. WE WANT TO MAKE A REASONABLE ESTIMATE AND REASONABLE ESTIMATE IS THAT IN THESE YEARS WHEREVER ASSESS EE HAS FILED APPEAL, THE GROSS PROFIT RATE ON UNPROVED PURCHASES BE RESTRICTED AT 10%. WE DIRECT THE AO ACCORDINGLY. THIS COMMON ISSUE IN ALL THE APPEALS OF THE ASSESSEE IS ALLOWED PARTLY. 9. THAT THE A.O IN THE MEAN TIME ISSUED SHOW CAUSE NOTICE , DATED 20.09.2015 TO THE ASSESSEE , THEREIN CALLING UPON IT TO EXPLAIN AS TO WHY PENALTY UNDER SECTION 271(1)(C) MAY NOT BE IMPOSED ON IN IT. THE ASSESSEE SUBMITTED BEFORE THE A.O THAT IN THE BACKDROP OF THE FACTS OF THE CASE , NO PENALTY UNDER SECTION 271(1 )(C) WAS CALLED FOR IN ITS HANDS . THE A.O HOWEVER NOT FINDING FAVOR WITH THE SUBMISSIONS OF THE P AGE | 6 ASSESSEE, BEING OF THE VIEW THAT AS THE ASSESSEE HAD FAILED TO SUBSTANTIATE ITS CLAIM WITH RESPECT TO THE PURCHASES DEB I TED IN ITS BOOKS OF ACCOUNT S , AS WELL AS FAILED TO GIVE A SATISFACTORY REPLY AS TO WHY THE PENAL PROVISIONS CONTEMPLATED UNDER SECTION 271(1)(C) WERE NOT APPLICABLE IN ITS CASE, THEREIN IMPOSED A PENALTY OF RS. 28,27,035/ - @ 150% OF THE TAX SOUGHT TO BE EVADED. 10. THE ASSESSEE AGGRIEVED WITH T HE IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) , THEREIN CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THAT THE ASSESSEE IN THE BACKDROP OF THE FACTS OF THE CASE SUBMITTED BEFORE THE CIT(A) THAT EVEN THOUGH THE ADDITION MADE BY THE A.O HAD BEEN CONFIRME D, THE LEVY OF PENALTY UNDER SECTION 271(1)(C) WAS UNCALLED FOR AND HAD WRONGLY BEEN IMPOSED BY THE A.O. IT WAS SUBMITTED BY THE ASSESSEE THAT THOUGH IT REMAIN ED AS A MATTER OF FACT THAT THE PURCHASES UNDER CONSIDERATION WERE NOT SUPPORTED BY BILLS, INVOIC ES/DELIVERY CHALLANS AS CALLED FOR BY THE A.O , AND THUS REMAINED UNPROVED TO THE SATISFACTION OF THE A.O, HOWEVER THE SAME WERE SUPPORTED BY THE GOODS RECEIVED NOTES PREPARED BY THE ASSESSEE . IT WAS SUBMITTED BY THE ASSESSEE THAT IT HAD NOT RAISED ANY WRON G CLAIM IN RESPECT OF THE AFORE SAID PURCHASE S , WHICH AS CLAIMED BY THE ASSESSEE WERE GENUINE , AND AS SUCH WERE RIGHTLY DEBITED IN ITS BOOKS OF ACCOUNTS. THE CIT(A) HOWEVER BEING OF THE VIEW THAT IT WAS NOT THE CASE OF THE ASSESSEE THAT CERTAIN GENUINE/ACTUAL EXPENDITURE HAD BEEN DISALLOWED BY THE A.O ON THE GROUND THAT THE SAME WAS NOT FOUND TO ALLOWABLE FOR INCOME TAX PURPOSES, BUT RATHER IT WAS A CLEAR CASE WHERE THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE GENUINENESS OF THE PURCHASES BY PRODUCING THE REQUISITE DOCUMENTARY EVIDENCES, I.E. BILLS, INVOICES AND DELIVERY CHALLANS , AS CALLED FOR BY THE A.O , AND EVEN THE NOTICES ISSUED UNDER SECTION 133(6) TO THE RESPECTIVE SUPPLIER PARTIES DID NEVER SAW THE LIGHT OF THE DAY , THEREFORE CONCLUDED THAT THE LEVY OF PENALTY BY THE A.O UNDER SECTION 271(1)(C) COULD NOT BE FAULTED P AGE | 7 WITH. THE CIT(A) FURTHER HELD THAT THE CASE LAW RELIED UPON BY THE ASSESSEE BEFORE THE A.O TO DRIVE HOME HIS CONTENTION THAT NO PENALTY UNDER SECTION 271(1)(C) WAS LIABLE TO BE IMPOSED , WERE DISTINGUISHABLE ON FACTS , AND AS SUCH WERE OF NO ASSISTANCE TO TH E ASSESSEE. THE CIT(A) THUS IN THE L IGHT OF HIS AFORESAID OBSERVATIONS UPHELD THE LEVY OF PENALTY IMPOSED BY THE A.O U/S 271(1)(C) AND DISMISSED THE APPEAL OF THE ASSESSEE. 11. THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD THEREIN CARRIED THE MATTER IN APPEAL BEFORE US. THAT DURING THE COURSE OF THE HEARING OF THE APPEAL THE LD. A UTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE TOOK US TO PAGE 41 TO 68 OF HIS PAPER BOOK (APB), WHICH IS A CONSOLIDATE ORDER PASSED BY THE TRIBUNAL IN THE QUANTUM APPEALS OF THE ASSESSEE FOR THE A.Y(S). 2007 - 08 TO 2010 - 11 & 2012 - 13, MARKED AS ITA NO. 2984 - 2988/MUM/2013; DATED. 13.01.2017 , AND THE APPEAL OF THE REVENUE FOR A.Y. 2011 - 12 , MARKED AS ITA NO. 781/MUM/2015. THE LD. A.R TAKING US THROUGH THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OF THE QUANTUM APPEALS OF THE ASSESSEE FOR THE A.Y(S). 2007 - 08 TO 2010 - 11 & 2012 - 13, IN ITA NO. 2984 TO 2988/M/2016, DATED 13.01.2017 , THEREIN SUBMITTED THAT THE ESTIMATION OF THE GROSS PROFIT RATE AT 25% MADE BY THE A.O. AND UPHELD BY THE CIT(A), WAS SUBSTITUTED BY AN ESTIMATE OF 10% BY THE TRIBUNAL . THE LD. A.R IN SUPPORT OF HIS AFORESAID CONTENTION , THEREIN DREW OUR ATTENTION TO THE OBSERVATIONS OF THE TRIBUNAL AT PARA 11 OF ITS ORDER ( PAGE 51 OF THE APB ). THE LD. A.R IN THE BACKDROP OF THE AFORESAID FACTS THEREIN SUBMITTED THAT AS THE ADDITION WHICH WAS INITIALLY MADE BY THE A.O , UPHELD BY THE CIT(A), AND FINALLY PARTLY SUSTAINED BY THE TRIBUNAL, WERE ALL BASED ON MERE ESTIMATION BY THE SAID RESPECTIVE AUTHORITIES, THEREFORE IN THE ABSENCE OF ANY CONCRETE MATERIAL WHICH COULD GO TO SUBSTANTIATE ANY CONCEALMENT OR FURNISHING OF INACCURATE PARTICULAR S OF INCOME BY THE ASSESSEE, NO PENALTY UNDER P AGE | 8 SECTION 271(1)(C) COULD VALIDLY BE IMPOSED. IT WAS THUS SUBMITTED BY THE LD. A.R. THAT SUCH STAND ALONE ESTIMATION OF THE GROSS PROFIT OF THE ASSESSEE , THOU GH MAY JUSTIFY AN ADDITION IN THE COURSE OF QUANTUM PROCEEDINGS, BUT HOWEVER THE SAME WOULD NOT AT ALL ON THE SAID COUNT JUSTIFY IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) . THE LD. A.R IN ORDER TO BUTTRESS HIS CONTENTION THAT THE GENUINENESS OF THE PURC HASES MADE BY THE ASSESSEE FROM THE AFORESAID PARTIES HAD DULY BEEN ACCEPTED BY THE TRIBUNAL WHILE UPHOLDING THE ORDER OF THE CIT(A) IN THE QUANTUM APPEAL OF THE ASSESSEE FOR A.Y. 2011 - 12, THEREIN DREW OUR ATTENTION TO PARA 22 OF THE ORDER PASSED BY THE TR IBUNAL IN ITA NO. 781/MUM/2015, DATED. 13.01.2017, WHEREIN THE TRIBUNAL HAD OBSERVED AS UNDER ( PAGE 68 OF APB) : - IN VIEW OF ABOVE DISCUSSION IT IS THEREFORE ABUNDANTLY CLEAR THAT THE A.O HAS HELD THE IMPUGNED PURCHASES OF FISH TO BE BOGUS ONLY ON THE BASIS OF HIS OWN ASSUMPTIONS AND PRESUMPTIONS. THE A.G. HAS NOT CARRIED OUT ANY INDEPENDENT ENQUIRY TO ESTABLISH HIS FINDING, ESPECIALLY WHEN THE APPELLANT HAD GIVEN ALL THE EVIDENCE AND COMPLETE CONFIRMATIONS ALONG WITH AFFIDAVITS, CHARTERED ACCOUNTANTS CERTIFICATES AS WELL AS THE COPIES OF THE RETURNS OF INCOME FILED BY THE SUPPLIERS, WHEREIN THE SALES MADE TO THE APPELLANT HAVE BEEN DECLARED. IT IS THEREFORE EVIDENT THAT THE A.O. WAS NOT JUSTIFIED IN DISALLOWING PURCHASES TO THE EXTENT OF THEM TO BE BO GUS. THE DISALLOWANCE OF RS. 24,78,39 0 / - IS THEREFORE DELETED. IT WAS THUS SUBMITTED BY THE LD. A.R THAT NOW WHEN A SIMILAR DISALLOWANCE MADE BY THE A.O BY TREATING THE PURCHASES MADE BY THE ASSESSEE FROM THE AFORESAID PARTIES IN A.Y. 2011 - 12 HAD BEEN DE LETED BY THE CIT(A) , AFTER CONSIDERING THE LEDGER AC C OUNTS AND AFFIDAVIT S OF THE SAID RESPECTIVE PARTIES, WHICH THEREAFTER HAD BEEN UPHELD BY THE P AGE | 9 TRIBUNAL, THEREFORE THE GENUINENESS OF THE PURCHASE MADE BY THE ASSESSEE FROM THE SAME PARTIES DURING THE YEAR UNDER CONSIDERATION COULD NOT BE DOUBTED AND HELD TO BE BOGUS. T HE LD. A.R. FURTHER TO SUPPORT HIS CONTENTION THAT FAILURE ON THE PART OF THE ASSESSEE TO SUBSTANTIATE ITS PURCHASES WOULD NOT AUTOMATICALLY LEAD TO LEVY OF PENALTY ON THE SAID COUNT UNDER SE CTION 271(1)(C), THEREIN RELIED ON A HOST OF JUDICIAL PRONOUNCEMENT S, AS UNDER: - (I) CIT VS. MEDIRATTA ENGG. CORPORATION (1980) 132 ITR 327 (DEL). (II). MEHSONS EXPORT VS. ITO & ANR. (2012) 347 ITR 639 (ALL) (III). RELIANCE INDUSTRIES LTD. VS. ACIT (2 013] 38 CCH 17 ( MU M - T RIB . ) ( IV ) . H OE L EATHER G ARMENTS L TD. VS. DCIT ( 2010 ) 39 SOT 210 ( H YD) ( V ) . CIT VS. U PENDRA M ITHANI ( ITA N O. 1860 OF 2009 , DT.0 5 .08.2009) (BOM) ( VI ) . CIT VS. S HIVNARAYAN J AMNALAL & C O. ( 1998 ) 232 ITR 311, 313 ( MP ) ( VII ) . CIT VS. M ANJUNATHA C OTTON & G INNING F ACTORY ( 2013 ) 359 ITR 565 ( K AR) ( VIII ) . CIT V S W HITEL I NE C HEMICALS ( 2014 ) 360 ITR 385 ( G UJ) (IX) . CIT VS. S ANDUR M ANGANESE & I RON O RES. L TD. ( 2014] 362 ITR 160 ( K AR) ( X ) . J NANOTOSH B HANDARY VS. ITO ( 2016 ) TIOL 2460 ( ITAT - K OL) ( XI ) . S H. V IKRAM S INGH VS. DCIT ( 2017 ) TIOL 79 ( ITAT - J AIPUR) . THE LD. A.R. IN ORDER TO DRIVE HOME HIS CONTENTION THAT THE FACTS OF THE CASE DID NOT CALL FOR LEVY OF PENALTY 271(1)(C), THEREIN HEAVILY RELIED ON THE JUDGMENT OF THE HONBLE HIGH COURT OF BOM BAY IN THE CASE OF CIT VS. UPENDRA V. MITHANI (ITA (L) NO. 1860 OF 2009), DATED 05.08.2009 , WHEREIN THE HONBLE HIGH COURT HAD OBSERVED AS UNDER: - THE ISSUE INVOLVED IN THE APPEAL REVOLVES A ROUND DELETION OF PENALTY UNDER SECTION 271(1)(C) OF THE I.T. ACT. THE TRIBUNAL HAS CONCURRED WITH THE VIEW TAKEN BY THE COMMISSIONER OF INCOME TAX (A). THE COMMISSIONER OF INCOME TAX (A) HAS RIGHTLY TAKEN A VIEW THAT NO PENALTY CAN BE IMPOSED IF THE FACTS AND CIRCUMSTANCES ARE EQUALLY CONSISTENT WITH THE HYPOTHESIS THAT THE AMOUNT DOES NOT P AGE | 10 REPRESENT CONCEALED INCOME AS WITH THE HYPOTHESIS THAT IT DOES. IF THE ASSESSEE GIVES AN EXPLANATION WHICH IS UNPROVED BUT NOT DISPROVED, I.E. IT IS NOT ACCEPTED BUT CIR CUMSTANCES DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSESSEES CASE IS FALSE. THE VIEW TAKEN BY THE TRIBUNAL IS A REASONABLE AND POSSIBLE VIEW. THE APPEAL IS WITHOUT ANY SUBSTANCE. THE SAME IS DISMISSED IN LIMINE WITH NO ORDER AS TO CO STS. T HE LD. A.R. THUS TAKING SUPPORT OF THE AFORESAID JUDGMENT, THEREIN AVERRED THAT THOUGH IT REMAIN ED AS A MATTER OF FACT THAT THE ASSESSEE IN THE PRESENT CASE COULD NOT PLACE ON RECORD THE BILLS, INVOICES AND DELIVERY CHALLANS, AS CALLED FOR BY THE A .O IN RESPECT OF THE AFORESAID PURCHASES OF RS. 2,04,16,739/ - (SUPRA) , BUT HAD SUPPORTE D THE GENUINENESS OF THE SAID PURCHASES BY PLACING ON RECORD THE GOODS RECEIVED NOTES, WHICH AS CLAIMED BY THE ASSESSEE WAS THE PRACTICE PREVALENT IN THE FISH INDUSTRY F OR BOOKING OF SUCH TYPE OF PURCHASES, AND THE AUTHENTICITY OF THE SAME HAD NEITHER BEEN DISLODGED OR DISPROVED BY THE LOWER AUTHORITIES , THEREFORE THE SAID FACT IN ITSELF TOOK THE CASE OF THE ASSESSEE BEYOND THE REALM OF THE PENAL PROVISIONS CONTEMPLATED UNDER SECTION 271(1)(C). THE LD. A.R. FURTHER SUBMITTED THAT NOW WHEN THE PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT FROM THE ASSESSMENT PROCEEDINGS, THEREFORE MERELY FOR TH E REASON THAT AN ADDITION IN RESPECT OF THE UNVERIFIED PURCHASES HAD BEEN MADE IN THE HANDS OF THE ASSESSEE, THE SAME WOULD NOT AUTOMATICALLY LEAD TO LEVY OF PENALTY U/S 271(1)(C) . IT WAS THUS SUBMITTED BY THE L D. A.R. THAT NOW WHEN IT REMAINS AS A MATTER OF FACT THAT NO EVIDENCE HAD BEEN BROUGHT ON RECORD , I.E NEITHER DURING THE COURSE OF THE QUANTUM PROCEEDINGS, NOR IN THE PENALTY PROCEEDINGS, WHICH WOULD THEREIN PROVE THAT THE ASSESSEE HAD RAISED A FALSE CLAIM IN RESPECT OF ITS PURCHASES, THEREFORE NO PE NALTY UNDER SECTION 271(1)(C) COULD BE IMPOSED IN THE HANDS OF THE ASSESSEE . THE LD. A.R. FINALLY SUBMITTED P AGE | 11 THAT THE FACTUM IN RESPECT OF GENUINENESS OF THE PURCHASE TRANSACTIONS WOULD EMERGE IN CASE IF THE A.O IS DIRECTED TO SUMMON THE AFORESAID SUPPLIER PARTIES IN EXERCISE OF HIS POWERS UNDER SECTION 131 OF THE ACT , WHICH THE LATTER HOWEVER HAD FAILED TO DO TILL DATE. PER CONTRA , THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D .R.) HEAVILY RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. IT WAS VEHEMENTLY SUBMITTED BY THE L D. D.R. THAT AS THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE GENUINENESS OF THE PURCHASE TRANSACTIONS BY PLACING ON RECORD ANY DOCUMENTARY EVIDENCE, NOR ANY CONFIRMATIONS DESPITE NOTICES SENT BY THE A.O TO THE RESPECTIVE SUPPLIER PARTIES WERE RECEIVED FROM THE LATTER, THEREFORE IN THE BACKDROP OF THE AFORESAID FACTUAL MATRIX T HE A.O. HAD RIGHTLY IMPOSED PENALTY UNDER SECTION 271(1)(C) IN RESPECT OF THE SUPPRESSED PROFITS RELATABLE TO THE BOGUS PURCHASES MADE BY THE ASSESSEE , WHICH THEREAFT ER WAS RIGHTLY SUSTAINED BY THE CIT(A). IT WAS THUS SUBMITTED BY THE L D. D .R. THAT THE APPEAL OF THE ASSESSEE BEING DEVOID OF ANY MERIT , WAS THUS LIABLE TO BE DISMISSED. 12. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVE S FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCE D BEFORE US. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE AND FIND SUBSTANTIAL FORCE IN T H E CONTENTIONS OF THE LD. A.R . WE ARE UNABLE TO PERSUAD E OURSELVES TO SUBSCRIBE TO THE VIEW ARRIVED AT BY THE LOWER AUTHORITIES FOR MULTIPLE REASONS, WHICH ARE CULLED OUT AS UNDER: - (I) THAT THOUGH IT REMAINS AS A MATTER OF FACT THAT THE ASSESSEE HAD FAILED TO COMPLY WITH THE DIRECTIONS OF THE A.O AND THEREIN PLA CE ON RECORD THE BILLS , INVOICES AND DELIVERY CHALLANS , AS REGARDS THE PURCHASES OF RS. 2,04,16,379/ - (SUPRA) STATED TO HAVE BEEN MADE FROM THE AFORESAID PARTIES, VIZ. M/S. SUHANA SEA FOODS, M/S PARKER FISHERIES AND M/S BEST SEA FOOD, BUT THEN WE ARE ALSO NOT P AGE | 12 OBLIVIOUS OF THE FACT THAT THE ASSESSEE HAD SUBMITTED AT LENGTH BEFORE THE LOWER AUTHORITIES THAT PURCHASES OF FISH BY THE ASSESSEE FROM THE AFOREMENTIONED OUTSTATION SUPPLIER S WAS SUPPORTED BY THE GOODS RECEIVED NOTES PREPARED BY THE ASSES SEE, WHICH WAS IN CONFORMITY WITH THE PRACTICE PREVALENT IN THE FISH INDUSTRY FOR BOOKING SUCH TYPE P URCHASES . WE FIND FROM T H E RECORDS THAT THE DIRECTOR OF THE ASSESSEE COMPANY, VIZ . MR. NISAR M.H NAIK IN HIS STATEMENT RECORDED BY THE A.O, HAD ON T H E BASI S OF A WELL REASONED EXPLANATION DEMONSTRATED AT LENGTH THE PRACTICE PREVALENT IN THE FISH INDUSTRY AS REGARDS BOOKING OF THE PURCHASES OF FISH ON THE BASIS OF SELF PREPARED GOODS RECEIVED NOTES, AS UNDER: - HOWEVER, IN THE CASE OF MUMBAI SUPPLIERS, THE WEIGHMENT MADE AT OUR FACTORY IN THE PRESENCE OF THEIR PERSONNEL FORMS THE BASIS OF THEIR WEIGHMENT. HOWEVER DUE TO THE VARIOUS DIFFERENCE OF THE LANDING CENTRES TO OUR FACTORY, THE WEIGHT OF THE FISH DIFFERS A T THE POINT OF WEIGHMENT AT OUR FACTORY. OUR POINT OF PURCHASE IS THE WEIGHMENT ACTUALLY RECEIVED IN OUR FACTORY. OUR RAW MATERIAL RECEIPT VOUCHERS INCLUDE THE A BOVE WEIGHT, COUNT (THE APPROX NO. O F FISH IN ONE KG.), THE FRESHNESS OF THE FISH AS CALIBRATED BY AN IMPORTED FRESHNESS METER. BASED ON THE ABOVE PARAMETERS, THE PRICE IS FINALISED AFTER DISCUSSION WITH THE SUPPLIER AND THE SAID RATE IS NOTED IN THE RECEIPT VOUCHER. THE SAID RAW MATERIAL RECEIPT VOUCHER IS THE BASIS OF OUR RAW MATERIAL PURCHASE. AL L OF THE ABOVE CAN BE ESTABLISHED FROM OUR SUPPLIERS. ALL PAYMENTS MADE TO OUR SUPPLIER IS THROUGH PAYEE ACCOUNT CHEQUE ONLY. ALL MANUFACTURED PRODUCTS ARE EXPORTED AND THERE ARE NO LOCAL P AGE | 13 SALE. MOST OF THE PRODUCT EXPORTED ARE DONE THROUGH LETTER OF CREDIT . WE ARE OF THE CONSIDERED VIEW THAT IN THE BACKDROP OF THE AFORESAID EXPLANATION OF THE ASSESSEE, IT CAN FAIRLY BE CONCLUDED THAT THE ASSESSEE HAD JUSTIFIED THE BOOKING OF THE PURCHASES OF FISH FROM THE OUTSTATION SUPPLIERS, ON THE BASIS OF SELF PREPARED GOODS RECEIPT VOUCHERS, WHEREIN A CLEAR MENTION OF THE WEIGHT, COUNT (THE APPROX NO. OF FISH IN ONE KG.) AND THE FRESHNESS OF THE FISH AS CALIBRATED BY AN IMPORTED FRESHNESS METER , STANDS CLEARLY MENTIONED, WHICH AS CLAIMED BY ASSESSEE IS IN CONFORMITY WI TH THE RECOGNISED PRACTICE OF BOOKING SUCH TYPE OF PURCHASES IN THE FISH INDUSTRY. WE ARE THUS OF THE CONSIDERED VIEW THAT THE AFORESAID EXPLANATION OF THE ASSESSEE, THEREIN EXPLAINING THE REASON AS REGARDS BOOKING OF THE PURCHASES OF FISH FROM THE AFORESAID PARTIES ON THE BASIS OF SELF PREPARED GOODS RECEIPT VOUCHERS , WHICH WE FIND HAD NOT BEEN DISPROVED BY THE A.O , AS THERE IS NOT A WHISPER OF A WORD BY THE A.O THEREIN REBUTTING THE AFORESAID CONTENTION OF THE ASSESSEE , THUS COULD NOT HAVE BEEN REJ ECTED AT THE THRESHOLD. WE THUS IN THE BACKDROP OF THE AFORESAID FACTUAL MATRIX, ARE PERSUADED TO HOLD THAT THE ASSESSEE HAD CAME FORTH WITH A JUSTIFIABLE EXPLANATION TO SUPPORT THE GENUINENESS OF THE PURCHASES OF RS. 2,04,16,379/ - (SUPRA) , AND ON THE BASI S OF THE SAME A PRIMA FACIE CASE STANDS ESTABLISHED, WHICH TAKES THE CASE OF THE ASSESSEE BEYOND THE REALM OF EXPLANATION 1 OF SEC. 271(1)(C) . (II). THAT THOUGH THE A.O HAD PROCEEDED WITH ON THE BASIS OF HIS OBSERVATION THAT THE NON - RECEIPT OF REPLIES FROM THE SUPPLIER PARTIES WAS TO BE CONSTRUED AS IF EITHER THE SUPPLIER PARTIES WERE BOGUS (NON - GENUINE), OR THE TRANSACTIONS ITSELF WERE NON - GENUINE P AGE | 14 TRANSACT IONS, BUT HOWEVER BOTH OF THE AFORESAID OBSERVATIONS ARE CLEARLY FOUND TO MILITATE AGAINST THE INFORMATION AVAILABLE ON THE RECORD OF THE A.O, AS UNDER: - (A). THE A.O WHILE FRAMING THE ASSESSMENT HAD CLEARLY YIELDED TO THE EXISTENCE OF THE SUPPLIER PARTI ES AND HAD RULED OUT THE DOUBT S AS REGARDS THE EXISTENCE OF THE SAID RESPECTIVE PARTIES, BY OBSERVING AT PAGE 3 - PARA 5.2 OF THE ASSESSMENT ORDER, AS UNDER: - 5.2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICE U/S 133(6) WERE ISSUED TO PARTIES FROM WHOM THE ASSESSEE HAD PURCHASED ITS RAW MATERIAL (FISH). THE NOTICES WERE NOT RETURNED BACK, THEREBY MEANING THAT THEY WERE SERVED. THUS NOW WHEN THE A.O HIMSELF HAD DULY CONCEDED TO THE FACT AS RE GARDS VALID SERVICE OF THE NOTICES ON THE RESPECTIVE PARTIES AT THE ADDRESSES PROVIDED BY THE ASSESSEE, THEREFORE , NO DOUBTS THEREAFTER DID SURVIVE AS REGARDS THE VERY EXISTENCE OF THE SAID RESPECTIVE SUPPLIER PARTIES. (B). THAT THOUGH THE A.O HAD RAISE D CERTAIN DOUBTS AS REGARDS THE PURCHASES UNDER CONSIDERATION , BUT HE HOWEVER HAD NEVER QUESTIONED THE CORRESPONDING SALES REFLECTED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS, BY OBSERVING AT PAGE 3 PARA 5.5 OF THE ASSESSMENT ORDER, AS UNDER: - 5.5. T HE EXPENSES OF THE ASSESSEE TO THE EXTENT OF THESE BOGUS PURCHASES IS CONSIDERED AS BEING BOGUS. THE SALE OF THE ASSESSEE IN TH I S ENTIRE PROCESS IS NOT BEING QUESTIONED. P AGE | 15 THUS FROM A PERUSAL OF THE AFORESAID OBSERVATION S OF THE A.O , WHO HAD NOT DISLODGED THE CORRESPONDING SALES REFLECTED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS , AND RATHER HAD ACCEPTED THE SAME , IT CAN SAFELY AND RATHER INESCAPABLY BE HELD THAT ALL THE DOUBTS ON THE PART OF THE A.O AS REGARDS THE GENUINENESS OF THE PURCHASES UNDER CONSIDERATION ARE DISPELLED AND THEREIN FALL TO GROUND . WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE AFORESAID OBSERVATIONS OF THE A.O , AND ARE OF THE CONSIDERED VIEW THAT THE SAME CLEARLY MILITATES AGAINST THE VIEW ARRIVED AT BY HIM TO THE CONTRARY , VIZ. EITHER THE SUPPLIER PARTIES WERE BOGUS, OR THE PURCHASE TRANSACTIONS IN ITSELF WERE BOGUS. (III). WE FURTHER FIND THAT A SIMILAR DISALLOWANCE WHICH WAS MADE BY THE A.O IN THE CASE OF THE ASSESSEE FOR A.Y. 2011 - 12, BY TREATING THE PURCHASES MADE FROM THE ABOVE MENTIONED PARTIES AS BOGUS, WAS HOWEVER ON APPEAL DELETED BY THE CIT(A) . WE FIND THAT THE CIT(A) WHILE DISPOSING OF THE QUANTUM APPEAL OF THE ASSESSEE FOR A.Y. 2011 - 12 , HAD AFTER THOROUGHLY P ERUSING THE LEDGER ACCOUNTS AND AFFIDAVITS OF THE ABOVEMENTIONED RESPECTIVE PARTIES, THEREIN HELD THAT THE PUR CHASES MADE BY THE ASSESSEE FROM THE AFORE SAID PARTIES COULD NOT BE DOUBTED AND HAD THUS DELETED THE ADDITION MADE BY THE A.O IN THE HANDS OF THE ASSESSEE ON THE SAID COUNT . THE ORDER OF THE CIT(A) WHEREIN THE PURCHASES MADE BY THE ASSESSEE FROM THE AFORESAID PARTIES WAS HELD TO BE GENUINE, HAD THEREAFTER BEEN UPHELD BY THE TRIBUNAL, WHICH HAD DISMISSED THE APPEAL OF THE REVENUE IN ITA NO. 781/MUM/2 015, DATED. 13.01.2017. THE TRIBUNAL WHILE UPHOLDING THE ORDER OF THE CIT(A) HAD OBSERVED THAT IT WAS P AGE | 16 ONLY ON THE BASIS OF ASSUMPTIONS AND PRESUMPTIONS THAT THE A.O HAD HELD THE PURCHASES OF FISH MADE BY THE ASSESSEE FROM THE AFORESAID SUPPLIER PARTIES DURING THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2011 - 12, AS BOGUS . WE FIND THAT THE TRIBUNAL AFTER VETTING THE DOCUMENTARY EVIDENCE FURNISHED BY THE ASSESSEE IN SUPPORT OF THE GENUINENESS OF THE PURCHASES MADE FROM THE AFOREMENTIONED PARTIES, VIZ. CONFIRM ATIONS AND AFFIDAVITS OF THE SUPPLIER PARTIES ; CHARTERED ACCOUNTANTS CERTIFICATES ; AS WELL AS THE COPIES OF THE RETURNS OF INCOME FILED BY THE SUPPLIER PARTIES , WHEREIN THE SALES MADE TO THE ASSESSEE STOOD REFLECTED , HAD THUS ONLY AFTER BEING SATISFIED HE LD THE SAID PURCHASE TRANSACTIONS TO BE GENUINE. WE FIND THAT THOUGH THE ADDITION MADE BY THE A.O BY TREATING THE PURCHASES MADE BY THE ASSESSEE FROM THE AFORESAID RESPECTIVE SUPPLIER PARTIES AS BOGUS IN A.Y. 2011 - 12, WAS DELETED BY THE CIT(A), AND THE L ATTERS ORDER WAS UPHELD BY THE TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE, HOWEVER A CONTRARY VIEW WAS TAKEN BY THE CIT(A) ON THE ISSUE AS REGARDS GENUINENESS OF THE PURCHASES MADE BY THE ASSESSEE FROM THE SAID PARTIES DURING THE YEAR UNDER CONSID ERATION, VIZ. A.Y. 2007 - 08, WHICH THEREAFTER IS FOUND TO HAVE BEEN UPHELD BY THE TRIBUNAL. W E ARE NOT OBLIVIOUS OF THE FACT THAT THE TRIBUNAL WHILE DISPOSING OF THE QUANTUM APPEAL OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2007 - 08, HAD TAK EN A DEPARTURE FROM THE VIEW AS WAS EARLIER ARRIVED AT BY IT WHILE DISMISSING THE APPEAL OF THE REVENUE IN THE CASE OF THE ASSESSE E FOR A.Y. 2011 - 12 . BE THAT AS IT MAY, THE VIEW ARRIVED AT BY THE TRIBUNAL AS REGARDS THE GENUINENESS OF THE PURCHASES MADE BY THE ASSESSEE FROM THE AFORESAID SUPPLIER PARTIES IN A.Y. 2011 - 12, THEREIN SUBSTANTIALLY DISPELS THE P AGE | 17 DOUBTS AS REGARDS THE GENUINENESS OF THE PURCHASES MADE BY THE ASSESSEE FROM THE AFORESAID PARTIES, ON THE BASIS OF WHICH WE ARE PERSUADED TO CONCLUDE THAT THE EXPLANATION OF THE ASSESSEE IN SUPPORT OF THE GENUINENESS OF THE PURCHASE TRANSACTIONS UNDER CONSIDERATION, TO SOME EXTENT MERITS ACCEPTANCE AND CANNOT BE SCRAPPED AT THE THRESHOLD. THUS TO BE BRIEF AND EXPLICIT, THE VIEW ARRIVED AT BY THE APPELLATE A UTHORITIES DURING THE YEAR UNDER CONSIDERATION , VIZ. A.Y. 2007 - 08 AND A.Y. 2011 - 12, CLEARLY MILITATES AGAINST EACH OTHER, WHICH THEREIN SUBSTANTIALLY DISLODGES THE CHARACTERIZATION OF THE PURCHASE TRANSACTIONS ENTERED INTO BY THE ASSESSEE WITH THE SAID SUPPLIER PARTIES DURING THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2007 - 08, AS BOGUS TRANSACTIONS. WE THUS ARE PERSUADED TO HOLD THAT SUCH CONFLICTING VIEWS OF THE APPELLATE AUTHORITIES AS REGARDS THE GENUINENESS OF THE SIMILARLY PLACED PURCHASE TRANSACTIONS, THEREIN SUBSTANTIALLY DISPELS THE DOUBTS RAISED BY THE LOWER AUTHORITIES IN RESPECT OF THE GENUINENESS OF THE PURCHASE TRANSACTIONS DURING THE YEAR UNDER CONSIDERATION, WHICH IN ITSELF SUFFICIENTLY TAKES THE CASE OF THE ASSES SEE BEYOND THE REALM OF THE PENAL PROVISIONS CONTEMPLATED U/S 271(1)(C) OF THE ACT. (IV). WE ARE FURTHER OF THE CONSIDERED VIEW THAT THE A.O HAD IMPOSED PENALTY IN THE HANDS OF THE ASSESSEE, PROMPTED MORE BY THE FACT THAT THE ADDITION AS REGARDS THE PROFIT RELATABLE TO THE BOGUS PURCHASES , WHICH HAD PARTLY BEEN SUSTAINED BY THE TRIBUNAL ON AN ESTIMATE BASIS TO THE EXTENT OF 10% PROFIT ELEMENT RELATABLE THERETO , HAD NOT BEEN FURTHER ASSAILED BY THE ASSESSEE AND HAD THUS ATTAINED FINALITY. WE ARE NOT IMPRESSED BY THE SAID VIEW OF THE LOWER AUTHORITIES, BECAUSE P AGE | 18 AS PER THE SETTLED POSITION OF LAW, BOTH THE ASSESSMENT AND PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT, AND MERELY BECAUSE AN ADDITION HAD BEEN MADE IN THE HANDS OF THE ASSESSEE WOULD NOT AUTOMATICALLY LEAD TO LEVY OF PENALTY. WE ARE FURTHER OF THE CONSIDERED VIEW THAT THE ASSESSEE IN THE PRESENT CASE, GOING BY THE FACT THAT IN THE ABSENCE OF THE SUPPORTING DOCUMENTARY EVIDENCES AS WAS CALLED FOR BY THE A.O, VIZ. B ILLS , INVOICES AND DELIVERY CHALLANS , COULD NOT PROVE THE GENUINENESS OF THE PURCHASES TO THE SATISFACTION OF THE LOWER AUTHORI TI ES, HAD THUS IN ORDER TO AVOID UNNECESSARY LITIGATION AND BOTHERATION, THEREIN ACCEPTED THE QUANTUM ADDITION, AS SUCH, AND DID NOT ASSAIL THE SAME ANY FURTHER. BE THAT AS IT MAY, WE ARE OF THE CONSIDERED VIEW THAT SUCH NON - FILING OF APPEAL BY THE ASSESSEE AGAINST THE QUANTUM ADDITION IN RESPECT OF THE PROFIT ELEMENT RELATABLE TO THE BOGUS PURCHASES, CANNOT ON A STAND ALONE BASIS J USTIFY THE IMPOSITION OF PENALTY U/S 271(1)(C) IN THE HANDS OF THE ASSESSEE. (V). WE ARE FURTHER OF THE CONSIDERED VIEW THAT IN THE ABSENCE OF ANY INDEPENDENT MATERIAL BEING MADE AVAILABLE ON THE RECORD, WHICH COULD THEREIN GO TO SUBSTANTIATE THE FA CTUM OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE, THE PART SUSTAINING OF AN ESTIMATED GROSS PROFIT ADDITION BY THE TRIBUNAL, WOULD NOT SUFFICIENTLY JUSTIFY SADDLING THE ASSESSEE WITH TH E LEVY OF PENALTY U/S 271(1)(C). 13. WE HAD HEARD AT LENGTH THE AUTHORIZED REPRESENTATIVES OF BOTH THE PARTIES, AS WELL AS PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE, AND PITT ED THE SAME AGAINST THE CONTENTIONS P AGE | 19 ADVANCED BEFORE US BY THE AUTHORIZED REPRESENTATIVES , IN THE BACKDROP OF THE ORDERS OF THE LOWER AUTHORITIES . WE ARE OF THE CONSIDERED VIEW THAT IN LIGHT OF THE MULTIPLE REASONS AS HAD BEEN CULLED OUT BY US HEREINABOVE, VI Z. THE BOOKING OF PURCHASES BY THE ASSESSEE FROM THE AFORESAID PARTIES ON THE BASIS OF SELF PREPARED GOODS RECEIVED VOUCHERS, A PRACTICE PREVALENT IN THE FISH INDUSTRY, HAVING NOT BEEN DISPROVED BY THE A.O; THE ACCEPTANCE BY THE A.O OF THE SALES REFLECTED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT; PURCHASE TRANSACTIONS FROM THE PARTIES UNDER CONSIDERATION HAVING BEEN HELD BY THE BY THE CIT(A) AND TRIBUNAL IN THE CASE OF THE ASSESSEE FOR A.Y. 2011 - 12 , AS GENUINE; RECEIPT OF NOTICES ISSUED U/S 133(6) BY THE SU PPLIER PARTIES AT THE ADDRESSES PROVIDED BY THE ASSESSEE, THEREIN PROVING THE VERY EXISTENCE OF THE PARTIES AT THE RESPECTIVE ADDRESSES; NO MATERIAL PLACED ON RECORD BY THE A.O TO DISPROVE THE GENUINENESS OF THE PURCHASE TRANSACTIONS; GP RATE OF THE ASSESS EE BEING IN CONFORMITY WITH THAT PREVALENT IN THE TRADE LINE ; AND GP ADDITION @25% OF THE VALUE OF THE IMPUGNED BOGUS PURCHASES MADE BY THE A.O, WHICH THEREAFTER WAS SUSTAINED BY THE CIT(A) AND PARTLY MODIFIED BY THE TRIBUNAL WHICH SUBSTITUTED THE SAME B Y 10% , ONLY BA CKED BY AN ESTIMATION AND NOT ON ANY CONCRETE BASIS, THUS SUBSTANTIALLY FORTIFIES OUR VIEW THAT NO PENALTY U/S 271(1)(C) COULD HAVE BEEN IMPOSED IN THE HANDS OF THE ASSESSEE . BEFORE PARTING, WE ARE PERSUADED TO OBSERVE THAT THE ADDITIONS MADE IN THE HANDS OF THE PRESENT ASSESSEE CAN TO THE BEST BE CHARACTERIZED AS BEING BASED ON UNVERIFIED PURCHASES AND NOT DISPROVED PURCHASES , AND THE CIRCUMSTANCES ATTENDING THERETO DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT T HE EXPLANATION TENDERED BY THE ASSESSEE AS REGARDS THE GENUINENESS OF THE PURCHASE TRANSACTIONS IS FOUND TO BE FALSE , THUS FIND THAT OUR AFORESAID VIEW THAT NO PENALTY IS CALLED FOR IN THE HANDS OF THE ASSESSEE STANDS FORTIFIED BY THE VIEW TAKEN BY THE P AGE | 20 HO NBLE HIGH COURT OF BOMBAY IN THE CASE OF UPENDRA V. MITHANI (SUPRA) . 14. WE THUS IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, THEREIN SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY OF RS. 28,27,035/ - IMPOSED BY THE A.O U/S 271(1)(C). 15. THE APPEAL OF THE ASSESSEE IS ALLOWED. I.T.A. NO(S).451 3 /MUM/2016 (A.Y. 2008 - 09) 16 . WE NOW TAKE UP THE APPEAL OF THE ASSESSEE FOR A.Y. 2008 - 09, MARKED AS ITA NO. 4514/MUM/2016, WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL: - ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 6 ERRED IN CONFIRMING THE PENALTY OF RS. 26, 27,888 / - (@150%) IMPOSED BY THE ASSESSING OFFICER ON THE BASIS OF ADDITIONS MADE IN THE ASSESSMENT ORDER DATED. 26.03.2015 WITHOUT CONSIDERING THE FACT THAT THERE WAS NO MALAFIDE INTENTION ON THE PART OF THE APPELLANT IN RESPECT OF THOSE ADDITIONS. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 17 . BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 29.09.2008, DECLARING INCOME OF RS.1,51,60,012/ - , WHICH WAS PROCESSED AS SUCH U/S 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS REOPENED U/S 147. THE A.O DURING THE COURSE O F THE ASSESSMENT PROCEEDINGS OBSERVING THAT THE ASSESSEE HAD CLAIMED PURCHASES OF FISH OF RS. 1,89,78,194/ - , WHICH P AGE | 21 HOWEVER W ERE NOT SUPPORTED BY PURCHASES BILLS/DELIVERY CHALLANS, THEREIN MADE A GP ADDITION @25% AMOUNTING TO RS. 47,44,549/ - IN RESPECT OF S UCH PURCHASES/TRANSACTIONS, BY TREATING THE SAME AS BOGUS. THE ADDITION MADE BY THE A.O WAS SUSTAINED BY THE CIT(A). THAT ON FURTHER APPEAL THE TRIBUNAL RESTRICTED THE GP ADDITION TO 10%. THAT IN THE MEAN TIME THE A.O IMPOSED PENALTY U/S 271(1)(C) OF RS. 2 6,27,888/ - (I.E @150%) IN THE HANDS OF THE ASSESSEE, WHICH ON APPEAL WAS UPHELD BY THE CIT(A). THE ASSESSEE HAD ASSAILED BEFORE US THE ORDER OF THE CIT(A) THERIN UPHOLDING THE PENALTY IMPOSED BY THE A.O U/S 271(1)(C). 18. THAT AT THE VERY OUTSET OF THE H EARING OF THE APPEAL, IT WAS SUBMITTED BY THE LD. A.R THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL WAS IDENTICAL TO THAT INVOLVED IN THE AFOREMENTIONED APPEAL OF THE ASSESSEE IN M/S REFRIGERATED DISTRIBUTORS PVT. LTD. VS. D CIT, WARD 2(3)(1), MUMBAI, FOR A.Y. 2007 - 08 , MARKED AS ITA NO. 4512 /MUM/2013. THE LD. D.R HAD NOT DISPUTED THE AFORESAID FACTUAL POSITION. WE HAVE PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE INVOLVED IN THE APPEAL BEFORE US IN THE CASE OF M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , FOR A.Y. 2007 - 08 . THUS IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE HEREIN ADJUDICATE THE PRESENT ISSUE IN TERMS OF OUR ORDER PA SSED WHILE DISPOSING OF THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE AFORESAID APPEAL , I.E M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013, AND OUR DECISION PASSED IN CONTEXT OF THE ISSUE UNDER CONSIDERATION IN THE SAID APPEAL , SHALL IN LIGHT OF OUR AFORESAID OBSERVATIONS APPLY MUTATIS MUTANDIS IN THE PRESENT APPEAL ALSO. WE THUS GOING BY OUR OBSERVATIONS AND REASONING P AGE | 22 ADOPTED WHILE DISPOSING OF THE AFORESAID APPEAL OF M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013 , FOR A.Y. 200 7 - 0 8 , THEREIN SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY OF RS. 26,27,888/ - IMPOSED BY THE A.O, WHICH THEREAFTER WAS SUSTAINED BY THE CIT(A). 1 9 . THE APPEAL OF THE ASSESSEE IS ALLOWED. I.T.A. NO(S).451 4 /MUM/2016 (A.Y.2009 - 10) 20 . WE NOW ADVERT TO THE APPEAL OF THE ASSESSEE FOR A.Y. 2009 - 10, MARKED AS ITA NO. 4514/MUM/2016, WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL: - ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 6 ERRED IN CONFIRMING THE PENALTY OF RS. 83,39,400/ - (@150%) IMPOSED BY THE ASSESSING OFFICER ON THE BASIS OF ADDITIONS MADE IN THE ASSESSMENT ORDER DATED. 26.03.2015 WITHOUT CONSIDERING THE FACT THAT THERE WAS NO MALAFIDE INTENTION ON THE PART OF THE APPELLANT IN RESPECT OF THOSE ADDITIONS. Y OUR APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 21 . BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 29.09.2009, DECLARING AN INCOME OF RS.1,94,32,290/ - , WHICH WAS PROCESSED AS SUCH U/S 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS REOPENED U/S 147. THE A.O DURING THE COURS E OF THE ASSESSMENT PROCEEDINGS OBSERVING THAT THE ASSESSEE HAD CLAIMED PURCHASES OF FISH OF RS. 6,02,25,858/ - , WHICH HOWEVER WERE NOT SUPPORTED BY PURCHASES BILLS/DELIVERY P AGE | 23 CHALLANS, THEREIN MADE A GP ADDITION @25% AMOUNTING TO RS. 1,50,56,465/ - IN RESPECT OF SUCH PURCHASES/TRANSACTIONS, BY TREATING THE SAME AS BOGUS. THE ADDITION MADE BY THE A.O WAS SUSTAINED BY THE CIT(A). THAT ON FURTHER APPEAL THE TRIBUNAL RESTRICTED THE GP ADDITION TO 10%. THAT IN THE MEAN TIME THE A.O IMPOSED PENALTY U/S 271(1)(C) OF RS. 83,39,400/ - (I.E @150%) IN THE HANDS OF THE ASSESSEE, WHICH ON APPEAL WAS UPHELD BY THE CIT(A). THE ASSESSEE HAD ASSAILED BEFORE US THE ORDER OF THE CIT(A) THERIN UPHOLDING THE PENALTY IMPOSED BY THE A.O U/S 271(1)(C). 22 . THAT AT THE VERY OUTSET OF THE HEARING OF THE APPEAL, IT WAS SUBMITTED BY THE LD. A.R THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL WAS IDENTICAL TO THAT INVOLVED IN THE AFOREMENTIONED APPEAL OF THE ASSESSEE IN M/S REFRIGERATED DISTRIBUTORS PVT. LTD. VS. DCIT, WARD 2(3)(1), MUMBAI, FOR A.Y. 2007 - 08 , MARKED AS ITA NO. 4512/MUM/2013. THE LD. D.R HAD NOT DISPUTED THE AFORESAID FACTUAL POSITION. WE HAVE PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE INVOLVED IN THE APPEAL BEFORE US IN THE CASE OF M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , FOR A.Y. 2007 - 08 . THUS IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE HEREIN ADJUDICATE THE PRESENT ISSUE IN TERMS OF OUR ORDER PASSED WHILE DISPOSING OF THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE AFORESAID APPEAL , I.E M/S REFRIGERATED DISTRI BUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013, AND OUR DECISION PASSED IN CONTEXT OF THE ISSUE UNDER CONSIDERATION IN THE SAID APPEAL, SHALL IN LIGHT OF OUR AFORESAID OBSERVATIONS APPLY MUTATIS MUTANDIS IN THE PRESENT APPEAL ALSO. WE THUS GOING BY OUR OBSERVATIONS AND REASONING ADOPTED WHILE DISPOSING OF THE AFORESAID APPEAL OF M/S REFRIGERATED P AGE | 24 DISTRIBUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013 , FOR A.Y. 2007 - 08, THEREIN SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY OF RS . 83,39,400/ - IMPOSED BY THE A.O, WHICH THEREAFTER WAS SUSTAINED BY THE CIT(A). 2 3 . THE APPEAL OF THE ASSESSEE IS ALLOWED. I.T.A. NO(S).451 5 /MUM/2016 (A.Y.2010 - 11) 24. WE NOW TAKE UP THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2010 - 11, MARKED AS ITA NO. 4515/MUM/2016, WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL: - ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) - 6 ERRED IN CONFIRMING THE PENALTY OF RS. 1,07,83,650/ - (@150%) IMPOSED BY THE ASSESSING OFFICER ON THE BASIS OF ADDITIONS MADE IN THE ASSESSMENT ORDER DATED. 26.03.2015 WITHOUT CONSIDERING THE FACT THAT THERE WAS NO MALAFIDE INTENTION ON THE PART OF TH E APPELLANT IN RESPECT OF THOSE ADDITIONS. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 25. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 27.09.2010, DECLARING AN INCOME OF RS.6,28,312/ - , WHICH WAS PROCESSED AS SUCH U/S 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS REOPENED U/S 147. THE A.O DURING THE COURSE O F THE ASSESSMENT PROCEEDINGS OBSERVING THAT THE ASSESSEE HAD CLAIMED PURCHASES OF FISH OF RS. 7,78,77,923/ - , WHICH HOWEVER WERE P AGE | 25 NOT SUPPORTED BY PURCHASES BILLS/DELIVERY CHALLANS, THEREIN MADE A GP ADDITION @25% AMOUNTING TO RS. 1,94,69,481/ - IN RESPECT OF SUCH PURCHASES/TRANSACTIONS, BY TREATING THE SAME AS BOGUS. THE ADDITION MADE BY THE A.O WAS SUSTAINED BY THE CIT(A). THAT ON FURTHER APPEAL THE TRIBUNAL RESTRICTED THE GP ADDITION TO 10%. THAT IN THE MEAN TIME THE A.O IMPOSED PENALTY U/S 271(1)(C) OF RS. 1,07,83,650/ (I.E @150%) IN THE HANDS OF THE ASSESSEE, WHICH ON APPEAL WAS UPHELD BY THE CIT(A). THE ASSESSEE HAD ASSAILED BEFORE US THE ORDER OF THE CIT(A) THERIN UPHOLDING THE PENALTY IMPOSED BY THE A.O U/S 271(1)(C). 26 . THAT AT THE VERY OUTSET OF TH E HEARING OF THE APPEAL, IT WAS SUBMITTED BY THE LD. A.R THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL WAS IDENTICAL TO THAT INVOLVED IN THE AFOREMENTIONED APPEAL OF THE ASSESSEE IN M/S REFRIGERATED DISTRIBUTORS PVT. LTD. VS. DCIT, WARD 2(3)(1), MUMBAI, FOR A.Y. 2007 - 08 , MARKED AS ITA NO. 4512/MUM/2013 . THE LD. D.R HAD NOT DISPUTED THE AFORESAID FACTUAL POSITION. WE HAVE PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL I S IDENTICAL TO THE ISSUE INVOLVED IN THE APPEAL BEFORE US IN THE CASE OF M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA), FOR A.Y. 2007 - 08 . THUS IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE HEREIN ADJUDICATE THE PRESENT ISSUE IN TERMS OF OUR ORDER PAS SED WHILE DISPOSING OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE AFORESAID APPEAL , I.E M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013, AND OUR DECISION PASSED IN CONTEXT OF THE ISSUE UNDER CONSIDERATION IN THE SAID APPEAL, SHALL IN LIGHT OF OUR AFORESAID OBSERVATIONS APPLY MUTATIS MUTANDIS IN THE PRESENT APPEAL ALSO. WE THUS GOING BY OUR OBSERVATIONS AND REASONING P AGE | 26 ADOPTED WHILE DISPOSING OF THE AFORESAID APPEAL OF M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013 , FOR A.Y. 2007 - 08, THEREIN SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY OF RS. 1,07,83,650/ - IMPOSED BY THE A.O, WHICH THEREAFTER WAS SUSTAINED BY THE CIT(A). 2 7 . THE APPEAL OF THE ASSESSEE IS ALLOWED. I.T.A. NO(S).451 6 /MUM/2016 (A.Y.2012 - 13) 2 8 . WE NOW DEAL WITH THE APPEAL OF THE ASSESSEE FOR A.Y. 2012 - 13, MARKED AS ITA NO. 4516/MUM/2016, WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL: - ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 6 ERRED IN CONFIRMING THE PENALTY OF RS. 23,30,530/ - (@ 150%) IMPOSED BY THE ASSESSING OFFICER ON THE BASIS OF ADDITIONS MADE IN THE ASSESSMENT ORDER DATED. 26.03.2015 WITHOUT CONSIDERING THE FACT THAT THERE WAS NO MALAFIDE INTENTION ON THE PART OF THE APPELLANT IN RESPECT OF THOSE ADDITIONS. YOUR APPELLANT CRAVE S LEAVE TO ADD, ALTER, MODIFY OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 2 9 . BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 27.09.2011, DECLARING AN INCOME OF RS.36,05,904/ - , WHICH WAS PROCESSED AS SUCH U/S 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT U/S 143(2). THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OBSERVING THAT THE ASSESSEE HAD CLAIMED PURCHASES OF FISH OF RS. 1,68,30,736/ - , WHICH HOWEVER WERE NO T SUPPORTED BY PURCHASES BILLS/DELIVERY P AGE | 27 CHALLANS, THEREIN MADE A GP ADDITION @25% AMOUNTING TO RS. 42,07,684/ - IN RESPECT OF SUCH PURCHASES/TRANSACTIONS, BY TREATING THE SAME AS BOGUS. THE ADDITION MADE BY THE A.O WAS SUSTAINED BY THE CIT(A). THAT ON FURTH ER APPEAL THE TRIBUNAL RESTRICTED THE GP ADDITION TO 10%. THAT IN THE MEAN TIME THE A.O IMPOSED PENALTY U/S 271(1)(C) OF RS. 23,30,530/ - (I.E @150%) IN THE HANDS OF THE ASSESSEE, WHICH ON APPEAL WAS UPHELD BY THE CIT(A). THE ASSESSEE HAD ASSAILED BEFORE US THE ORDER OF THE CIT(A) THERIN UPHOLDING THE PENALTY IMPOSED BY THE A.O U/S 271(1)(C). 30 . THAT AT THE VERY OUTSET OF THE HEARING OF THE APPEAL, IT WAS SUBMITTED BY THE LD. A.R THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL WAS IDENTICAL TO THAT INVOLVED IN THE AFOREMENTIONED APPEAL OF THE ASSESSEE IN M/S REFRIGERATED DISTRIBUTORS PVT. LTD. VS. DCIT, WARD 2(3)(1), MUMBAI, FOR A.Y. 2007 - 08 , MARKED AS ITA NO. 4512/MUM/2013. THE LD. D.R HAD NOT DISPUTED THE AFORESAID FACTUAL POSITION. WE HAVE PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL PRODUCED BEFORE US. WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE INVOLVED IN THE APPEAL BEFORE US IN THE CASE OF M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA), FOR A.Y. 2007 - 08 . THUS IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE HEREIN ADJUDICATE THE PRESENT ISSUE IN TERMS OF OUR ORDER PASSED WHILE DISPOSING OF TH E GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE AFORESAID APPEAL , I.E M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013, AND OUR DECISION PASSED IN CONTEXT OF THE ISSUE UNDER CONSIDERATION IN THE SAID APPEAL, SHALL IN LIGHT OF OUR AFORESAID OBSERVATIONS APPLY MUTATIS MUTANDIS IN THE PRESENT APPEAL ALSO. WE THUS GOING BY OUR OBSERVATIONS AND REASONING ADOPTED WHILE DISPOSING OF THE AFORESAID APPEAL OF M/S REFRIGERATED DISTRIBUTORS PVT. LTD. (SUPRA) , MARKED AS ITA NO. 4512/MUM/2013 , FOR P AGE | 28 A.Y. 2007 - 08, THEREIN SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY OF RS. 23,30,530/ - IMPOSED BY THE A.O, WHICH THEREAFTER WAS SUSTAIN ED BY THE CIT(A). 31 . THE APPEAL OF THE ASSESSEE IS ALLOWED. 32 . THAT ALL THE APPEALS FILED BY THE ASSESSEE , I.E FOR A.Y(S). 2007 - 08 TO 2010 - 11 AND A.Y. 2012 - 13, MARKED AS ITA NO(S).4512 TO 4516/MUM/2016, RESPECTIVELY, ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 07 /06 /2017 SD/ - SD/ - (R.C SHARMA) (RAVISH SOOD) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 07 .06 .2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / D.R, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P AGE | 29