DY CIT - 26(1), MUMBAI V. SHRI VINODKUMAR S. DEORA , MUMBAI

ITA 470/MUM/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6243 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 30-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI AMARJIT SINGH, JM आयकर अपील सं/ I.T.A. No.470/Mum/2021 (निर्धारण वर्ा / Assessment Year: 2010-11) DCIT-26(1) Room No.623, 6 th Floor, Kautilya Bhavan, Bandra Kurla Complex, Bandra (E), Mumbai-400051. बिधम/ Vs. Vinodkumar S. Deora G/507, Sonmarg, S. V. Road, Malad (W), Mumbai- 400064. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AAAPD4566E (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) सुनवाई की तारीख / Date of Hearing: 16/11/2021 घोषणा की तारीख /Date of Pronouncement: 16/12/2021 आदेश / O R D E R PER AMARJIT SINGH, JM: The revenue has filed the present appeal against the order dated 27.02.2020 passed by the Commissioner of Income Tax (Appeals) -41 Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2010- 11. 2. The revenue has raised the following grounds: - 1 “On the facts and in the circumstances of the case and in law whether the Ld. CIT(A) was justified in deleting the penalty levied u/s 271(1)(c) without appreciating that the penalty was levied on quantum addition made on account of bogus purchases wherein the onus was on the assessee to establish the genuineness of such Revenue by: Shri S. N. Kabra Assessee by: None ITA No. 470/Mum/2021 A.Y.2010-11 2 purchases by production of such parties before the assessing officer for examination or by furnishing other substantiating documents to prove the genuineness of the transaction and the assessee failed to discharge his onus.” 2. “On the facts and in the circumstances of the case and in law whether the Ld. CIT(A) was justified in deleting the penalty without appreciating the fact 2 that the Assessing Officer has levied penalty only after verifying the fact that the assessee evaded the taxes on the quantum addition made on account of bogus purchase.” 3 “The appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored.” 4 The appellant prays that the order passed by Ld. CIT(A) be set aside and that of the Assessing Officer be restored. 5. The appellant craves leave to amend or to alter any ground or add a new ground, which may be necessary.” 3. The brief facts of the case are that the assessment u/s 143(3) of the Act was completed on 14.03.2013 determining the total income to the tune of Rs.94,11,740/- as against Rs.22,87,440/- declared by assessee in his return filed on 30.09.2010 on account of non-genuine purchases. Penalty proceeding was initiated. Subsequently, the assessee filed an appeal before the CIT(A) who restricted the addition to the extent of Rs.17,65,189/- providing the relief to the tune of Rs.52,95,567/-. Thereafter, the assessee preferred an appeal before the ITAT against the decision of the CIT(A), the AO initiated the penalty provision by issuance of notice. After the reply of the assessee, the penalty to the tune of Rs.5,50,000/- was levied. Feeling ITA No. 470/Mum/2021 A.Y.2010-11 3 aggrieved, the assessee filed an appeal before the CIT(A) who deleted the penalty, therefore, revenue has filed the present appeal before us. ISSUE NOS. 1 TO 5 4. All the issues are in connection with the deletion of penalty by CIT(A) by virtue of order dated 27.02.2020 under challenge. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.:- “I have gone through the submission of the appellant. As per the decision of (ITAT vide order No. ITA No.7723/Mum/2014 and 7251/Mum/2014 dated 06.10.2016 (Cross appeals, one by Revenue and the other by the assesse), with regard to the quantum appeal filed by the assessee against the assessment order u/s 143(3) dated 14.03.2013, the quantum appeal has been fully Allowed to the Appellant, hence, in my opinion, since the quantum appeal has been allowed by the ITAT, the penalty order passed by the A.O. on the basis of the issues raised in quantum appeal becomes infructuous. Therefore, the penalty order passed by the AO is Deleted and the Grounds of appeal raised are Allowed.” 5. On appraisal of the above mentioned finding, we find that the CIT(A) has deleted the penalty on the basis of this fact that the Hon’ble ITAT in the appeal of the assessee as well as revenue bearing ITA. Nos. 7723/Mum/2014 and 7251/Mum/2014 dated 05.10.2016 deleted the addition. Since the quantum has been deleted, therefore, undoubtedly, no penalty is leviable. Accordingly, we find that the CIT(A) has rightly deleted the penalty and the order of the CIT(A) is nowhere required interfere with ITA No. 470/Mum/2021 A.Y.2010-11 4 at this appellate stage. Accordingly, all the issues are decided in favour of the assessee against the revenue. 6. In the result, the appeal filed by the revenue is hereby dismissed. Order pronounced in the open court on 16/12/2021 Sd/- Sd/- (SHAMIM YAHYA) (AMARJIT SINGH) लेखध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; ददनांक Dated : 16/12/2021 Vijay Pal Singh (Sr. P.S.) आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त(अपील) / The CIT(A)- 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदध, आयकर अपीलीय अदधकरण, मुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधिक िंजीकधर /(Dy./Asstt. Registrar) आिकर अिीलीि अनर्करण, मुंबई / ITAT, Mumbai