NITIN HARSHADRAI MANIAR, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 30(2), MUMBAI

ITA 4800/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0427 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 06-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABDUL HAKEEM M
• Assessee Lawyers: VIPUL J SHAH
• Keywords: Bogus purchase; Unexplained expenditure
• Section: 271(1)(c); 69C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHRI B. R. B A SK A RAN , ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 4800/MUM/17 2010 - 11 NITIN HARSHADRAI MANIAR, 301/302, SAMRUDDHI CHS LIMITED, ANNASAHEB SAWANT ROAD, VILLE PARLE, MUMBAI [PAN: AAHPM7384E] ASST. COMMISSIONER OF INCOME TAX - 30(2), MUMBAI 4801/MUM/17 2011 - 12 4805/MUM/17 2009 - 10 APPELLANT BY : SHRI VIPUL J. SHAH , AR RESPONDENT BY : SHRI ABDUL HAKEEM M. , D R DATE OF HEARING : 06 - 11 - 201 8 DATE OF PRONOUNCEMENT : - 27 - 11 - 201 8 O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER : TH E S ETHREE APPEAL S HA VE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE C OMMISSIONER OF INCOME TAX (A PPEALS ) - 41 , MUMBAI , FOR THE AY S . 2009 - 10, 2010 - 11 AND 20 11 - 12 . SINCE T HE ISSUE IS COMMON (I.E., CHALLENGING THE PENALTY LEVIED BY THE AO WHICH WAS CONFIRMED BY THE LD.CIT(A) U/S. 271(1)(C) OF THE ACT) IN ALL THESE APPEALS, WE HAVE HEARD ALL THESE APPEALS TOGETHER AND ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 2 ADJUDICATED BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE , FACTS IN ITA NO. 4800/MUM/2017 FOR THE AY. 2010 - 11 ARE DISCUSSED HEREUNDER: ITA NO. 4800/MUM/2017 (AY. 2010 - 11) : 2. B R IEF FACTS OF THE CASE ARE THAT, ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE AC T DETERMINING THE TOTAL INCOME AT RS. 49,97,320/ - AS AGAINST THE RETURNED INCOME OF RS. 45,66,440/ - . THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WERE ALSO INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME WITH REFERENCE TO THE ADDITION OF RS. 4,30,878/ - MADE U/S. 69C OF THE ACT ON ACCOUNT OF BOGUS PURCHASES TREATED AS UNEXPLAINED EXPENDITURE . 3. LD.AR REITERATED THE SAME ARGUMENTS WAS RAISED BY HIM BEFORE THE LD.CIT(A) AND SUBMITTED THAT HE HAD PROCURED THE MATERIAL FROM THE SUPPLIERS UNDER THE BO NAFIDE BELIEF AND HAD MADE PAYMENT BY ACCOUNT PAYEE CHEQUES . IT WAS ALSO SUBMITTED THAT THE PURCHASES FROM THE SUSPICIOUS D EALERS WERE APPROXIMATELY 1.1% OF THE TOTAL PURCHASES AND HENCE THERE WAS NO WILLFUL ATTEMPT/PROCESS BY THE ASSESSEE TO INDULGE IN ANY ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 3 WRONG ACTIVITY. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAS PLACED ON RECORD ALL THE COPIES OF PURCHASE BILLS, LEDGER ACCOUNTS AND BANK STATEMENTS TO PROVE THE GENUINENESS OF THE TRANSACTIONS. IT WAS ALSO ARGUED THAT 10 OF THE SUPPLIERS WERE VALID AND ACTIVE AT THE TIME OF ENTERING THE TRANSACTIONS AND LATER ON THE PARTY WAS DECLARED AS SUSPICIOUS HAWALA DEALER BUT NOT AS CONFIRMED HAWALA DEALER . LD.AR FURTHER SUBMITTED THAT THE ADDITION HAD BEEN MADE U/S. 69C WHICH IS NOT APPLICABLE IN THE PRESENT CASE OF ASSESSEE A S ONCE EXPENSES ARE RECORDED IN THE BOOKS. THEREFORE, THE CIRCUMSTANCES OF 69C ARE NOT APPLICABLE. 3.1. IT WAS ALSO ARGUED BY THE LD.AR THAT FIRST OF ALL SECTION 69C COULD NOT BE APPLIED TO THE FACTS OF THE PRESENT CASE AS THE PAYMENTS WERE THROUGH BANKING CHANNELS WHICH WERE DULY REFLECTED IN THE BOOKS OF ACCOUNT AND THEREFORE, THERE WAS NO UNEXPLAINED EXPE NDITURE WITHIN THE MEANING OF SECTION 69C INCURRED BY THE ASSESSEE. HE FURTHER ARGUED THAT ASSESSEE MADE A CLAIM WHICH WAS BONA FIDE AND THE SAME WAS COUPLED WITH DOCUMENTARY EVIDENCES BUT THE SAME REMAINED INCONCLUSIVE FOR WANT OF CONFIRMATION FROM THE SU PPLIERS. THEREFORE, OVERALL FACTS OF THE CASE DO NOT JUSTIFY IMPOSITION OF PENALTY ON THE ASSESSEE ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 4 AND THEREFORE, THE SAME DESERVES TO BE DELETED ON MERITS OF THE CASE. APART FROM THIS LD.AR ALSO ARGUED THAT THE SHOW CAUSE NOTICE ISSUED BY THE AO HAD NOT STRIKE - OFF ANY APPLICABLE PART A ND EVEN OTHERWISE, THE ADDITIONS WERE MADE BY THE AO ON THE BASIS OF INTIMATION FROM THE INVESTIGATION AGENCY AND NOT ON THE BASIS OF THE INDEPENDENT MATERIAL COLLECTED BY THE AO. LD.AR ALSO RELIED UPON THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF EARTHMOVING EQUIPMENT SERVICES CORPORATION VS. DY.CIT IN ITA NO. 6617/MUM/2014 (AY. 2010 - 11) DT. 02 - 05 - 2017. 4. ON THE OTHER HAND, LD.DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS , PERUSED THE MATERIAL ON RECORD , JUDGMENTS CITED A S WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. FROM THE RE CORDS WE FIND THAT THE ADDITIONS WERE MADE ON ACCOUNT OF BOGUS PURCHASES. THE ALLEGED SUPPLIERS THOUGH APPEARED IN THE LIST OF SALES TAX BOGUS PARTIES, THEREFORE NOTICE U/S. 133 (6) WAS ISSUED TO THE PARTIES WHICH WERE RETURNED UN - SERVED. LD.CIT(A) UPH E LD THE PENALTY LEVIED BY THE AO ON THE ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 5 GROUND THAT SINCE THE ASSESSEE FAILED TO FURNISH THE CORRECT ADDRESSES OF THE PARTIES AND AS PER THE ENQUIRIES AND INVESTIGATIONS OF THE SALES TAX DEPARTMENT ALONG WITH DEPOSITION OF ALLEGED SUPPLIERS CLEARLY ESTABLISHED THAT THE SAID PARTIES HAD ISSUED BOGUS BILLS WITHOUT ANY SUPPLY OF GOODS. WE HAVE CO NSIDERED THE ORDERS RELIED UPON BY THE LD.AR OF THE ASSESSEE I.E., THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF EARTHMOVING EQUIPMENT SERVICES CORPORATION VS. DY.CIT IN ITA NO. 6617/MUM/2014 (AY. 2010 - 11) DT. 02 - 05 - 2017 , WHEREIN UNDER THE IDENTICAL FACTS AND CIRCUMSTANCES, THE PENALTY WAS DELETED BY THE CO - ORDINATE BENCH . THE RELEVANT PORTION OF THE SAME IS CONTAINED IN PARA NOS. 3 TO 7 OF THE SAID ORDER OF THE CO - ORDINATE BENCH , WHICH IS REPRODUCED BELOW: 3. THE LD. COUNSEL FOR ASSESSES, DR. K. SHIVRAM, WHILE DRAWING OUR ATTENTION TO THE DOCUMENT PLACED IN THE PAPER BOOK, A SSAILED PENALTY ORDER ON LEGAL GROUNDS AS WELL AS ON MERITS BY CONTENDING THAT THE SHOW CAUSE NOTICE ISSUED U/S 274 WAS DEFECTIVE AS THE RELEVANT CLAUSE AS APPLICABLE TO THE CA SE OF THE ASSESSEE WAS NOT APPROPRIATELY MARKED AS NO SPECIFIC CHARGE WAS MENTIONED THEREIN FOR WHICH THE PENALTY WAS BEING INITIATED BY THE LD.AO AND HENCE IT HAS RESULTED INTO TAKING AWAY ASSESSEES VALUABLE RIGHT OF CONTESTING THE SAME AND THEREFORE, TH E PENALTY PROCEEDINGS STANDS VITIATED. RELIANCE WAS PLACED ON JUDICIAL PRONOUNCEMENTS RENDERED BY APEX COURT IN CIT VS. SSA'S EMERALD MEADOWS [ 73 TAXMANN.COM 248 ] & JURISDICTIONAL HON BLE BOMBAY HIGHCOURT IN CIT VS. SAMSON PERINCHERY [ITA NO. 1154 OF 2014 05 / 01 / 2017 ] & HON'BLE KARNATAKA HIGH COURT IN CIT VS. MANJUNATHA COTTON &GINNING FACTORY [359 ITR 565] & MUMBAI TRIBUNAL IN WADHWA ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 6 ESTATE & DEVELOPERS VS. AC I T [ ITA NO.2158 / MUM / 2016 DATED 24 / 02 / 2017 ] . 4. ON MERITS, THE LD. AR CONTENDED THAT THE LD. AO HAS WRONGLY INVOKED SECTION 69C TO BOGUS PURCHASES AS THE TRANSACTIONS WERE DULY RECORDED IN THE BOOKS OF ACCOUNT AND THE PAYMENTS WERE MADE THROUGH BANKING CHANNELS FROM ACCOUNTS WHICH WERE DULY REFLECTED IN THE BOOKS OF ACCOUNTS. FURTHER, THE ASSESSE E AC CEPTED THE QUANTUM ADDITIONS AND DID NOT CONTEST THE SAME ANY FURTHER IN VIEW OF THE FACT THAT IT COULD NOT OBTAIN CONFIRMATORY LETTERS FROM THE ALLEGED SUPPLIERS AS THEY COULD NOT BE TRACED AT THE RELEVANT TIME. NEVERTHELESS, THE ASSESSEE WAS IN POSSESSION OF PURCHASE INVOICES, DELIVERY CHALLANS, LEDGER EXTRACTS THEREOF AND ALL THE PAYMENTS WERE THROUGH BANKING CHANNELS. THEREFORE, THE ASSESSES VOLUNTARILY OFFERED THE QUANTUM ADDITIONS BY FILING REVISEDCOMPUTATION OF INCOME DURING QUANTUM PROCEEDI NGS WHICH WAS IN GOOD FAITH, TO BUY PEACE AND TO AVOID ANY FURTHER LITIGATION. THE AO DULY ACCEPTED THE ADDITIONS OFFERED BY THE ASSESSES WITHOUT MAKING ANY EFFORTS TO OBTAIN CONFIRMATION FROM THE ALLEGED SUPPLIERS. IN VIEW OF ALL THESE FACTORS, THE ASSESS EE STOOD GOOD CHANCE OF SUCCEEDING IN QUANTUM APPEAL, HOWEVER, IT REFRAINED FROM DOING SO ONLY TO BUY PEACE OF MIND AND AVOID FURTHER LITIGATION. RELIANCE WAS PLACED ON FOLLOWINGJUDICIAL PRONOUNCEMENTS FOR VARIOUS CONTENTIONS: - I) CIT VS. RELIANCE PETRO P RODUCTS [2010 322 ITR 158 SUPREME COURT] II) CIT VS. LARSEN & TOUBRO LTD [2014 366 ITR 502 BOMBAY HIGH COURT] III) CIT VS. SONAL CONSTRUCTION CO. [55 TAXMANN.COM 425 GUJARAT HIGH COURT] IV) M.G. CONTRACTORS PVT. LTD. VS . DCIT [ITA NOS. 7034 TO 7038/DEL/2014 19/09/2016 DELHI TRIBUNAL] V) ANITA BUILDERS VS. ACIT [2002 74 ITJ 364 JODHPUR TRIBUNAL] 5. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE PLACED RELIANCE ON SECTION 292B TO CONTEND THAT MERE DEFECT IN THE NOTICE DO NOT VITIATES THE PENALTY PROCEEDINGS AND NO PREJUDICE WAS CAUSED TO THE ASSESSES BY NON - MARKING OF APPROPRIATE CLAUSE. THE ASSESSEE VERY WELL KNEW THE GROUNDS FOR WHICH HE WAS BEING PENALIZED AND THE LD. A O WITH DUE ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 7 APPLICATION OF MIND INITIATED PENALT Y PROCEEDINGS IN QUANTUM ASSESSMENT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND FINALLY LEVIED THE PENALTY ON THE SAME GROUND. MOREOVER, THE ASSESSES ACTIVELY CONTESTED THE PENALTY PROCEEDINGS BEFORE AO AND THEREFORE, THE LEGAL GROUNDS, BEING ON LY HYPER - TECHNICAL IN NATURE, DO NOT CARRY MUCH WEIGHT. FURTHER, ON MERITS, THE LD. DR POINTED THAT THE ASSESSES'S CONDUCT PROVED THE POINT THAT THE PURCHASES IN DISPUTE WERE BOGUS AND THE ASSESSES, ON BEING SCRUTINIZED BY THE REVENUE, ACCEPTED THE SAME AN D REVISED THECOMPUTATION OF INCOME DESPITE BEING HAVING THE POSSESSION OF PURCHASE DOCUMENTS. THEREFORE, THE ASSESSEES CONTENTION THAT THE ADDITION WAS OFFERED VOLUNTARILY, TO BUY PEACE OF MIND AND TO AVOID VEXED LITIGATION HOLDS NO STRENGTH. 6 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD INCLUDING CITED CASE LAWS. SO FAR AS THE LEGAL GROUNDS ARE CONCERNED, A PERUSAL OF QUANTUM ORDER REVEALS THAT THE PENALTY WAS INITIATED FOR FURNISHING OF INACCURATE PARTICULARS AND FINALLY THE SAME WAS LEVIED ON THE SAME GROUND. WE FIND THAT THE ASSESSEE WAS ISSUED TWO SHOW CASUE NOTICES ONE IN THE STANDARD PRINTED FORM U/S 274 DATED 04/03/2013 AS PLACED ON PAGE NO. - 86 OF THE PAPER BOOK AND ANOTHER DATED 27/08/2013 BY WAY OF L ETTER AS PLACED IN PAGE NO. 92 OF THE PAPER BOOK. WE FIND THAT IN THE FIRST NOTICE, THE RELEVANT CLAUSE HAS NOT BEEN TICKED OFF AND THE SECOND NOTICE IS SIMPLY A SHOW CAU S E NOTICE. HOWEVER, IN THE QUANTUM ORDER LD.AO, AFTER DUE DELIBERATIONS, CLEARLY INITIATED THE PENALTY PROCEEDINGS FOR FURNISHING OF INACCURATE PARTICULARS WHICH SHOWS DUE APPLICATION OF MIND QUA PENALTY PROCEEDINGS. THE PENALTY WAS FINALLY LEVIED ON THE SAME GROUND AS WELL. THEREFORE, MERE MARKING OF RELEVANT CLAUSE, IN OUR OPINION, ON THE FACTS OF THE CASE, HAS NOT CAUSED ANY PREJUDICE TO THE ASSESSEE PARTICULARLY WHEN THE ASSESSEE VOLUNTARILY OFFERED CERTAIN ADDITIONS IN THE QUANTUM PROCEEDINGS WITH A SPECIFIC REQUEST TO AO FOR NOT INITIATING THE PENALTY AGAINST THE SAME. THE ASSESSEE VERY WELL KNEW THE CHARGES / GROUNDS FOR WHICH HE WAS BEING PENALIZED AND HE ACTIVELY CONTESTED THE PENALTY BEFORE THE LD.AO. AT THIS JUNCTURE, WE FIN D THAT THE PROVISIONS OF SECTION 292B COMES TO THE RESCUE OF THE REVENUE WHICH CURES MINOR DEFECT IN THE VARIOUS NOTICES ISSUED PROVIDED SUCH NOTICE IN SUBSTANCE AND EFFECT WAS IN CONFORMITY WITH THE INTENT AND PURPOSE OF THE ACT. ON OVERALL FACTS AND CIRC UMSTANCES, WE FIND THAT SUCH CONDIT I ON WAS FULFILLED IN THE I NSTANT CASE. WE FIND THAT THE REVENUE'S SPECIAL LEAVE PETITION [SLP] DISMISSEDBY THE APEX COURT IN CIT VS. SSA S EMERALD MEADOWS [ SUPRA ] CONFIRMEDTHE DECISION OF HON'BLE HIGH COURT, WHICH IN TURN, RELIED UPON THEJUDGMENT RENDERED IN CIT VS. MANJUNATHA ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 8 COTTON & GINNING FACTORY [359ITA 565]. THE DECISION RENDERED BY HON'BLE BOMBAY HIGH COURT IN CIT VS. SAMSON PE R INCHE RY [S UPRA] ALSO PLACED THE RELIANCE O N THIS JUDGMENT.AFTER PERUSING THE RATIO OF THE JUDGMENT RENDERED IN CIT VS. MANJUNATHA COTTON & GINNING FACTORY (SUPRA ) , WE FIND THAT THEASSESSEE'S APPEAL WAS ALLOWED BY HON'BLE HIGH COURT AFTER CONSIDERING THE MULTIPLE FACTORS AND NOT SOLELY ON THE BASIS OF DEFECT IN NOTICE U/S 274. THEREFORE, WE ARE OF THE OPINION THAT THE PENALTY COULD NOT BE DELETED MERELY ON THE BASIS OF DEFECT POINTED BY THE LD. AR IN THE NOTICE AND THEREFO RE, THE LEGAL GROUNDS RAISED ARE REJECTED. 7. ON MERITS LD. AR HAS ASSAILED IMPOSITION OF PENALTY ON VARIOUS GROUNDS AND PLACED RELIANCE ON VARIOUS JUDICIAL PRONOUNCEMENTS WHICH WE HAVE DULY CONSIDERED. WE FIND TH A T FIRST OF ALL SECTION 69C COULD NOT BE APPLIED TO THE FACTS OF THE CASEAS THE PAYMENTS WERE THROUGH BANKING CHANNELS WHICH WERE FULLY REFLECTED IN THE BOOKS OF ACCOUNTS AND THEREFORE, THERE WAS NO UNEXPLAINED EXPENDITURE WITHIN THE MEANING OF SECTION 69C INCURRED BY THE ASSESSEE. FURTHER, WE FIND THAT THE ASSESSES WAS IN POSSESSION OF PURCHASE INVOICES AND VARIOUS OTHERDOCUMENTARY EVIDENCES QUA THESE PURCHASES. A BARE PERUSAL OF THEPURCHASE INVOICES REVEALS THAT THE ASSESSEE HAS PURCHASED CONSUMABLES ETC. FROM THE ALLEGED BOGUS SUPPLIERS, WHI CH ARE CONNECTED, AT LEAST TO SOME EXTENT, WITH THE BUSINESS OF THE ASSESSES. THE ASSESSES, DURING QUANTUM PROCEEDINGS ITSELF FILED REVISED COMPUTATION OF INCOME AFTER DISALLOWING THE A L LEGED BOGUS PURCHASES BY CITING THE REASON THAT THE SUPPLIERS WERE NOT TRACEABLE DURING ASSESSMENT PROCEEDINGS. NEVERTHELESS, THE ASSESSED WAS IN POSSESSION OF VITAL EVIDENCES IN HIS POSSESSION TO PRIMA LADE SUBSTANTIATE HIS PURCHASES TO SOME EXTENT PARTIC ULARLY WHEN THE PAYMENTS WERE THOUGH BANKING CHANNELS. MERELY BECAUSE THE SUPPLIERS COULD NOT BE TRACED AT THE GIVEN ADDRESS WOULD NOT AUTOMATICALLY LEAD TO A CONCLUSION THAT THERE WAS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS BY THE AS SESSEE. THE ASSESSEE MADE A CLAIM WHICH WAS BONA FIDE AND THE SAME WAS COUPLED WITH DOCUMENTARY EVIDENCES BUT THE SAME REMAINED INCONCLUSIVE FOR WANT OF CONFIRMATION FROM THE SUPPLIERS. THEREFORE, OVERALL FACTS OF THE CASE DO NOT JUSTIFY IMPOSITION OF PEN ALTY ON THE ASSESSEE AND THEREFORE, THE SAME DESERVES TO BE DELETED ON MERITS OF THE CASE. ALL THE CITED CASE LAWS SUPPORT THE VIEW TAKEN BY US IN THE MATTER. THEREFORE, BY DELETING THE IMPUGNED PENALTIES, WE ALLOW ASSESSES'S APPEAL . ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 9 5.1. AFTER HEARING T HE COUNSELS OF BOTH THE PARTIES, PERUSING THE RECORDS AND DECISION OF THE CO - ORDINATE BENCH, WE FIND THAT IDENTICAL GROUND HAS BEEN DEALT WITH BY THE CO - ORDINATE BENCH. THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE CO - ORDINATE BENCH, WHEREIN IT WAS HELD THAT SINCE SECTION 69C COULD NOT BE INVOKED AS THE PAYMENTS WERE MADE THROUGH BANKING CHANNELS, WHICH WERE DULY REFLECTED IN THE BOOKS OF ACCOUNT AND THEREFORE THERE WERE NO UN - EXPLAINED EXPENDITURE WITHIN THE MEANING OF SECTION 69C. IN TH E PRESENT CASE ALSO THE PAYMENTS WERE MADE THROUGH BANKING CHANNELS WHICH WERE DULY REFLECTED IN THE BOOKS OF ACCOUNT, THEREFORE THERE WAS NO UNEXPLAINED EXPENDITURE WITHIN THE MEANING OF SECTION 69C INCURRED BY THE ASSESSEE. HENCE IN SUCH CIRCUMSTANCE S, SECTION 69C COULD NOT BE INVOKED. THEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH, WE HEREBY DELET E THE PENALTY . 5.2. SINCE THE ISSUE IS SAME IN THE AYS. 2009 - 10 AND 2011 - 12, AS PER THE DETAILED DISCUSSION FOR THE AY. 2010 - 11 HEREIN ABOVE, WE DELETE THE PENALTY LEVIED AND GROUND RAISED IN ALL THE APPEALS ARE ALLOWED. ITA NO S . 4800, 4801 & 4805 /MUM/2017 NITIN HARSHADRAI MANIAR 10 6. IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE ARE ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH D AY OF NOVEMBER , 2018 SD/ - SD/ - ( B.R. BASKARAN ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 27 TH NOVEMBER , 201 8 TNMM COPY OF THE ORDER FORWARDED TO : 1. THE APP ELL ANT 2. THE RESPONDENT 3. T HE CIT(A), MUMBAI 4. THE CIT 5. DR, BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR I NCOME T AX A PPELLATE T RIBUNAL , MUMBAI