ITO WARD 1(5), Thane V. M/S DISHA IMPLEX, Thane

ITA 4527/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9574 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 04-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bogus purchase; Reason to believe
• Section: 271(1)(c); 142(1); 250; 143(2); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 4527/MUM/2019 ( ASSESSMENT YEARS: 2009-10 ) ITO, WARD 1(5) ASHAR IT PARK, RD NO. 14, 6 TH FLOOR, B WING, WGALE ESTATE, THANE (W) / VS. M/S DISHA IMPEX 6/321, RAVI KIRAN, 1 ST FLOOR, DEODHAR ROAD, MATUNGA, MUMBAI-400019 ./ ./ PAN/GIR NO. : AADFD4564D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI BHARAT ANDHLE, DR / RESPONDENT BY : NONE / DATE OF HEARING 28/01/2021 !'# / DATE OF PRONOUNCEMENT 29/01/2021 / O R D E R PER RAJESH KUMAR - AM: THE REVENUE HAS FILED THE APPEAL AGAINST THE ORDER OF THE CIT(A)-1, THANE PASSED U/S 271(1)(C) A ND 250 OF THE ACT. THE REVENUE HAS RAISED THE FOLLOWIN G THE GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DE LETING ITA NO S. 4527 /MUM/2019 M/S DISHA IMPLEX., MUMBAI. - 2 - THE PENALTY LEVIED U/S 271(1)(C) WITHOUT PROPERLY APPRECIATING THE DECISIONS OF THE HON'BLE APEX COUR T IN THE CASE OF MAK DATA PVT. LTD. VS CIT ( CIVIL APPEA L NO. 9772 OF 2013 )' AND THE HON'BLE GUJARAT HIGH COURT DECISION IN THE CASE OF N. K. PROTEINS LTD, TAX APP EAL NO. 242 OF 2003 DATED 20/06/2016 AGAINST WHICH THE SLP WAS DISMISSED BY THE HON'BLE SUPREME COURT AND ALSO IGNORING THE FACT THAT DEPARTMENT RECEIVED SPECIFIC INFORMATION IN THIS CASE FROM THE SALES TAX DEPARTM ENT OF THE STATE GOVERNMENT OF MAHARASHTRA IN RESPECT OF N ON- GENUINE PURCHASE'. 2. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED I N DELETING THE PENALTY LEVIED U/S 271(1)(C) WITHOUT APPRECIATING THE FACT THAT THERE WAS A DEFINITE FIN DING IN THE ASSESSMENT ORDER IN RESPECT OF BOGUS PURCHASES AND OF FURNISHING INACCURATE PARTICULARS OF INCOME RELA TING TO PURCHASES RESULTING INTO CONCEALMENT OF INCOME. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY GROUND OF APPEAL. 4. THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE NOR ANY ADJOURNMENT PETITION WAS FILED . WE HEARD THE LD.DR AND PERUSED THE MATERIAL ON RECORD. 3. BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE F IRM HAS FILED THE RETURN OF INCOME ON 29.09.2009 FOR TH E ITA NO S. 4527 /MUM/2019 M/S DISHA IMPLEX., MUMBAI. - 3 - A.Y 2009-10 ELECTRONICALLY WITH A TOTAL INCOME OF R S. 2,64,409/-.SUBSEQUENTLY, THE A.O. HAS RECEIVED INFORMATION FROM SALES TAX DEPARTMENT OF MAHARASHTRA THAT THE ASSESSEE HAS OBTAINED BOGUS PURCHASE BILLS FROM FOUR ENTITIES OF RS.3,71,240/-. THEREFORE, THE A.O HAS REASON TO BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT AND ISSUED NOTICE U/S 148 OF THE ACT. SUBSEQUENTLY, THE A.O ISSUED NOTICE U/S 143(2) AND 142(1) ALONG WITH QUESTIONNAI RE WERE ISSUED. THE ABOVE NOTICES WERE RETURNED UNSERVED BY THE POSTAL AUTHORITIES AND THE A.O. OBSERVES THAT THE FIRM IS NOT CARRYING ON ACTIVITY AT PRESENT KNOWN ADDRESS. SINCE THERE IS NO RESPONSE, THE ASSESSING OFFICER MADE BEST JUDGMENT ASSESSMENT U/SEC144 OF THE ACT AND MADE ADDITION OF BOGUS PURCHASES AND ASSESSED THE TOTAL INCOME OF RS. 6,35,650/- AND PASSED ORDER U/SEC 144R.W.S147 OF THE ACT ON 28-03-2015. SUBSEQUENTLY, THE A.O INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND LEVIED MINIMUM PENALTY OF RS. 1,14,710/- AND PASSED THE ORDER U/S 271(1)(C) OF THE ACT DATED 30.09.2015. ITA NO S. 4527 /MUM/2019 M/S DISHA IMPLEX., MUMBAI. - 4 - 4. AGGRIEVED BY THE PENALTY ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). THE LD.CIT(A) AFT ER CONSIDERING THE GROUNDS OF APPEAL OF THE ASSESSEE AND THE FINDINGS OF THE A.O HAS DEALT AT PAGE 3 PAR A 5 TO 8 OF THE ORDER AND DELETED THE PENALTY AND ALLOW ED THE ASSESSEES APPEAL. AGGRIEVED BY THE ORDER, THE REVENUE HAS FILED AN APPEAL WITH THE TRIBUNAL. 5. AT THE TIME OF HEARING, THE LD. DR SUBMITTED THA T THE CIT(A) HAS PASSED AN EX-PARTE ORDER WITH OUT CONSIDERING THE FACTS THAT THE GENUINENESS OF THE BOGUS PURCHASES WERE NOT PROVED AND SUPPORTED THE ORDERS OF THE A.O. 6. WE HEARD THE LD. DR AND PERUSED THE MATERIAL ON RECORD. THE SOLE CRUX OF THE DISPUTED ISSUE WITH RESPECT TO DELETION OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT ON THE BOGUS PURCHASES BY THE CIT(A). THE L D. DR COULD NOT CONTROVERT THE FINDINGS OF THE LD.CIT( A) WITH COGENT EVIDENCES OR ANY NEW INFORMATION. WE FIND THE LD.CIT(A) HAS RELIED ON JUDICIAL DECISIONS AND PASSED A REASONABLE ORDER. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AN D UPHOLD THE SAME AND DISMISSED THE GROUNDS OF APPEAL OF THE REVENUE. ITA NO S. 4527 /MUM/2019 M/S DISHA IMPLEX., MUMBAI. - 5 - 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.01.2021 SD/- SD/- (PAVAN KUMAR GADALE) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 29/01/2021 KRK, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / THE CIT(A) 4. ) ( ) / CONCERNED CIT 5. ,-. //'( , '(# , & / DR, ITAT, MUMBAI 6. .34 5 / GUARD FILE. / BY ORDER, , / //TRUE COPY// 1. / ( ASST. REGISTRAR) !' #, / ITAT, MUMBAI