ITO - 13(3)(3), MUMBAI V. VIVA COMPOSITE PANEL PVT. LTD., MUMBAI

ITA 5708/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4343 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 05-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAMATHA MULLAMUDI LD
• Assessee Lawyers: VALLABH PARMAR LD
• Keywords: Tax effect; Set aside
• Section: 271(1)(c); 10; 11

Judgement Text

ITA NO S . 5708 - 5709 /MUM/2018 M/S V IVA COMPOSITE P ANEL PRIVATE LIMITED ASSESSMENT YEAR S : 20 10 - 11 & 2011 - 1 2 1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE HONBLE SHRI MANOJ KUMAR AGGARWAL, AM AND HONBLE SHRI RAVISH SOOD, JM (HEARING THROUGH VIDEO CONFERENC ING MODE) ./ I.T.A. NO. 5 708 / MUM/ 2018 ( / ASSESSMENT YEAR : 20 10 - 1 1 ) & ./ I.T.A. NO. 5 70 9 / MUM/ 2018 ( / ASSESSMENT YEAR : 20 1 1 - 1 2 ) ITO - 13(3)(3) R.NO.227, 2 ND FLOO R AAYKAR B HAWAN , M.K. ROAD MUMBAI 400 020 / VS. M/S VIVA COMPOSITE PANEL PVT. LTD. UNIT NO.7, NEW TEJPAL ESTATE ANDHERI KURLA ROAD, SAKINAKA MUMBAI 400 072 ./ ./ PAN/GIR NO . AAB CV - 9909 - K ( / APPELLANT ) : ( / RE SPONDENT ) ASSESSEE BY : SHRI VALLABH PARMAR LD. AR REVENUE BY : MS. SAMATHA MULLAMUDI - LD. SR. DR / DATE OF HEARING : 27 / 10 /2020 / DATE OF PRON OUNCEMENT : 27 / 10 /2020 / O R D E R PER BE NCH 1. AFORESAID APPEAL S BY REVENUE FOR A SSESSMENT YEAR S [IN SHORT REFERRED TO AS AY] 20 10 - 11 & 2011 - 12 C ONTEST SEPARATE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS ) - 21, MUMBAI [CIT(A)] QUA DELETIO N OF CERTAIN PENALTY U/S 271(1)(C). IN THE SAID ORDERS, LD. CIT(A) HAS DELE TED PENALTY OF RS.1 LAC & RS. 0.87 LAC FOR AYS 2010 - 11 & 2011 - ITA NO S . 5708 - 5709 /MUM/2018 M/S V IVA COMPOSITE P ANEL PRIVATE LIMITED ASSESSMENT YEAR S : 20 10 - 11 & 2011 - 1 2 2 12 RESPECTIVELY. THE FACTS AS WELL AS G ROUNDS RAISED IN BOTH THE YEARS ARE IDENTICAL AN D ADJUDICATION IN ANY YEAR SHALL EQUALLY APPLY TO THE OTHER YEAR ALSO. THE GROUNDS FOR A Y 2010 - 11 READS AS UNDER : - 1. WHETHER O N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY LEVIED WITHOUT APPRECIA TING THE FACT S THAT THE ASSESSEE HAS FAILED TO PRO VE THE GENUINENESS OF TRANSACTION OF THE PURCHASES. 2. THE AP PELLANT PRAYS THAT THE O RDER OF TH E LD. CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. WE HAVE CAREFULLY HEARD THE ARGUMENTS ADVANCED BY BOTH THE SIDES. OUR ADJUDICATION TO THE SUBJE CT MATTER OF APPEAL WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. 2 . WHILE FRAMING ASSESSMENT F OR AY 2010 - 11, T HE ASSESSEE WAS SADDLED WITH ESTIMATED ADDI TION OF RS. 3 .24 LACS WHICH WAS NOTHING BUT ESTIMATED ADDI TION OF 1 2.5% AGAINST CERTAIN SUSPICIOUS PU RC H ASES SINCE THE ASSESSE E FAILED T O DISCHARGE THE ONUS OF ESTABLISHING THE GENUINENES S OF PURCHASES. CONSE QUENTLY, A PENALTY OF RS. 1 LAC WAS LEVI ED BY LD. AO U/S 271(1)(C) VIDE ORDER DATED 06/12/2017 . 3. THE LD. CIT(A) DE LETED THE SAME BY OBSER VING THAT THE PENALTY COULD NOT BE LEVIED WHE RE THE ADDITIONS WERE MADE ON ESTIMATED BASIS. FOR THE SAID PROPOSITION, R ELIANCE WAS PLACED, INTER - ALIA, ON THE BIN DING D ECISION O F HON BLE PUNJAB & HARYANA HIGH COURT IN H ARIGOPAL SINGH V/S CIT 258 ITR 85 AND HON BLE GUJARAT HIGH COURT IN CIT V / S SUBHASH TRADING CO. 221 ITR 110 BESIDES HOST OF VARIOUS TRIBUNAL DECISIONS WHI CH ARE ALREADY ENUMERATED IN THE IMPUGNED ORDER. THEREFORE, T HE PENALTY WAS DELE TED. AGGRIEVED, THE REVEN U E IS IN FURT HER APPEAL BEFORE US. ITA NO S . 5708 - 5709 /MUM/2018 M/S V IVA COMPOSITE P ANEL PRIVATE LIMITED ASSESSMENT YEAR S : 20 10 - 11 & 2011 - 1 2 3 4. UPON CAREF UL CONSIDERATION, WE FIND THAT T HE IMPUGNED ORDER WOULD NOT REQUIRE ANY INTE R FERENCE ON OUR PART FOR TWO REASONS. FIRS TLY, WE CONCUR WITH THE PROPOSITION THAT NO PENALTY COULD BE LEVIE D FOR CONCEALMENT O F INCOME WHEREIN THE ADDITIONS WERE MERELY ESTIMATED ADDI TION . THE CASE LAW BEING REL IED UPON BY LD. CIT(A), IN THIS REGARD, WERE APP LICABLE TO THE FACTS OF THE CASE. SECONDLY, THE QUANTUM OF PENALTY BEING DIS PUTED BY THE RE VENUE IS BELOW THRESHOLD LIMIT OF RS.50 LACS AND THEREFORE, THE APPEAL IN NOT MAINTAINABLE IN TERMS OF LATE ST LOW TAX EFFECT CIRCULAR NO. 17/2019 DATED 0 8/08/2019 [F.NO.279/MISC. 142/2007 - TTJ(PT.) I SSUED BY CBDT. THIS RECENT CIRCULAR FURTHER ENHANCES THE MONETARY LIMIT FIXED IN EARLIER CIRCULAR NO.3 OF 2018 DATED 11/ 07/2018 ISSUED BY CBDT AS AMEN DED ON 20/08/2018. THUS, VIEWING FROM ANY ANGLE, THE REVENUE S APPEAL STA ND S DISMISSED. 5. SIMI LAR ARE THE FACTS IN AY 2011 - 12 WHEREIN THE ASSESSEE WAS SADDLED WITH PENALTY OF RS. 0 .87 LA C UNDER SIMILAR CIRCUMSTANCES. THE SAME WAS DELE TED BY LD. CIT(A) ON THE SAME LOGIC AND REASONI NG . AGGRIEVED , THE REVENUE IS IN FURTHER APPEAL BEFORE US. SINCE THE FACTS ARE IDENTICAL , APPLYING T HE ADJUDICATION OF AY 2010 - 11 , THE APPEAL STANDS DISMISSED. 6. RESULTANTL Y, BOTH T HE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH OCTOBER, 2020. SD/ - SD/ - ( RAVISH SOOD ) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 27 / 10 / 2020 SR.PS, JAISY VARGHESE ITA NO S . 5708 - 5709 /MUM/2018 M/S V IVA COMPOSITE P ANEL PRIVATE LIMITED ASSESSMENT YEAR S : 20 10 - 11 & 2011 - 1 2 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./AS STT.R EGISTRAR) , / ITAT, MUMB AI.