ACIT 28(2), MUMBAI V. M/S LUCID PRINTS, NAVI MUMBAI

ITA 469/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7963 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 20-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Keywords: Bogus purchase
• Section: 271(1)(c); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE SHRI PRAMOD KUMAR , HONBLE VICE PRESIDENT AND SHRI SAKTIJIT DEY , HONBLE JUDICIAL MEMBER ITA NO. 469/MUM/2020 ASSESSMENT Y EAR: 2009 - 10 ACIT - 28(2), ROOM NO. 307, 3 RD FLOOR, 6 TH TOWER, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400703 VS. M/S LUCID PRINTS, PLOT NO. A - 227, T.T.C, INDUSTRIAL AREA, MAHAPE, NAVI MUMBAI - 400710 PAN: AAAFL0710G (APPELLANT) (RESPONDENT) REVENUE BY : SHRI BRAJENDRA KUMAR (D R) ASSESSEE BY : NONE DATE OF HEARING: 22/07 /20 21 DATE OF PRONOUNCEMENT: 06 / 08 /202 1 O R D E R PER SAKTIJIT DEY , JM THIS IS AN APPEAL BY THE REVENUE AGAINST ORDER DATED 19.11 .2019 OF LEARNED COMMISSIONER OF INC OME TAX (APPEALS) 26 , MUMBAI DELETING THE PEN ALTY IMPOSED OF RS. 5,50,000 / - UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT , 1961 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. WHEN THE APPEAL WAS TAKEN UP FOR HEARING, NO ONE WAS PRESENT FOR THE ASSESSEE TO REPRESENT THE CASE. CONSIDERING THE NATURE OF DISPUTE, WE DISPOSE OF THE APPEAL EX - PARTE QUA THE ASSESSEE AFTER HEARING THE LEARN ED DEPARTMENTAL REPRESENTATIVE AND BASED ON MATERIALS ON RECORD. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE IS A RESIDENT COMPANY. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.09.2009 DECLARING TOTAL INCOME OF RS. 26,30,966 / - . SUBSEQUENTLY, BASED ON 2 ITA NO. 469 / MUM/2020 ASSESSMENT YEAR: 20 09 - 1 0 INFORMATION RECEIVED FROM SALES TAX AUTHORITIES INDICATING THAT THE ASSESSEE IS A BENEFICIARY ACCOMMODAT ION BILLS PROVIDED BY WAY OF BOGUS PURCHASES AMOUNTING TO RS. 49,40,988/ T HE ASSESSING OFFICER (AO) REOPEN ED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. IN COURSE OF ASSESSMENT PROCEEDINGS, THE AO CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE AFORESAID PUR CHASES. THOUGH, THE ASSESSEE FURNISHED SOME EVIDENCES T O CLAIM THE PURCHASE AS GENUINE, HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED, THUS, HE TREATED THE PURCHASES AS NON GENUINE. HOWEVER, INSTEAD OF DISALLOWING THE ENTIRE PURCHASES, ALLE GED TO BE NON GENUINE, HE DISALLOWED AN AMOUNT OF RS . 17, 78,756/ , BEING 36% OF SUCH PURCHASES. ASSESSEE CONTESTED THE AFORESAID D ECISION OF THE AO BEFORE LEARNED COMMISSIONER (APPEALS). PARTLY ACCEPTIN G THE CLAIM OF THE ASSESSEE, LEARNED COMMISSIONER (APPE ALS) RESTRICTED THE DISALLOWANCE TO 12.5%. BASED ON ADDITION SUSTAINED BY LEARNED COMMISSIONER (APPEAL S), THE AO INITIATED PROCEEDING FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND ULTIMATELY PASSED AN ORDER IMPOSING PENALTY OF RS . 5,50,00 0/ ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME. WHILE CONSIDERING ASS ESSEES APPEAL ON THE ISSUE, LEARNED COMMISSIONER (APPEALS) DELETED THE PENALTY IMPOSED. 4. WE HAVE C ONSIDERED THE SUBMISSIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND PER USED THE MATERIALS ON RECORD. IT IS EVIDENT , BOTH , THE AO AND LEARNED COMMISSIONER (APPEALS) HAVE DISALLOWED PART OF THE PURCHASES, ALLEGED TO BE NON GENUINE BY ESTIMATING THE PROFIT ELEMENT EMBEDDED IN SUCH PURCHASES. THUS, IT IS VERY MUCH CLEAR THAT THE ADDITION LEADING TO THE IMPOSITION OF PENALTY WAS MADE PURELY ON ESTIMATE BASIS BY ENTERTAINING SOME DOUBT REGARDING THE SOURCE OF PU RCHASES. THEREFORE, SUCH ESTIMATED ADDITION , IN OUR VIEW , CANNOT LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS FURNISHED INA CCURATE PARTICULARS OF INCOME. THAT BEING THE CASE, LEARNED COMMISSIONER (APPEALS) WAS JUSTIFIED IN DELETING THE PENALTY IMPOSED UNDER SECTION 271(1) (C) OF THE ACT. THEREFORE, WE UPHOLD THE ORDER OF LEARNED COMMISSIONER (APPEALS). 3 ITA NO. 469 / MUM/2020 ASSESSMENT YEAR: 20 09 - 1 0 6. IN THE RESULT, APPEA L IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH AUGUST , 2021 . SD/ - SD/ - ( PRAMOD KUMAR ) VICE PRESIDENT (SAKTIJIT DEY) JUDICIAL MEMBER MUMBAI ; DATED: 06 / 08 /2021 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / D R, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REG ISTRAR) , / ITAT, MUMBAI