INCOME TAX OFFICER-28 (1)(5), MUMBAI V. GANESH ENGINEERING WORKSHOP , MUMBAI

ITA 5773/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8168 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Bogus purchase; Unexplained expenditure; Question of law; Difference of opinion; Accommodation entries; Tax effect; Onus to prove
• Section: 271(1)(c); 69C; 143(3); 274; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) G BENCH, MUMBAI BEFORE SHRI C.N. PRAS AD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , HON'BLE ACCOUNTANT MEMBER IT A. NO. 5773 /MUM/201 9 (A.Y: 20 10 - 11) INCOME TAX OFFICER - 28(1)(5) ROOM NO. 325, 3 RD FLOOR TOWER NO. 6 VASHI RAILWAY STATION COMPLEX VASHI, NAVI MUMBAI - 400703 V. M/S. GANESH ENGINEERING WORKSHOP POT NO. 77, SECTOR - 23 TURBHE, NAVI MUMBAI - 400703 PAN: AAAFG1982H (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI T.S. KHALSA DATE OF HEARING : 2 2.06.2021 DATE OF PRONOUNCEMENT : 30 . 07 .2021 O R D E R PER C.N. PRASAD (JM) 1. TH IS APPEAL IS FILED BY THE REVENUE AGAINST ORDER OF THE L EARNED COMMISSI ONER OF INCOME - TAX (APPEALS) - 26 , MUMBAI [HEREINAFTER FOR SHORT 'LD. CIT(A)] DATED 21.06.2019 FOR THE A.Y. 20 10 - 11 IN DELETING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT MADE BY THE ASSESSING OFFICER . 2 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP 2. BRIEFLY STATED THE FACTS ARE THAT, ASSESSEE ENGAGED IN THE BUSINESS OF TRADING FILED RETURN OF INCOME ON 24.09.2010 DECLARING INCOME OF . 2,43,880 / - FOR THE A.Y: 20 10 - 11. THE RETURN WAS PROCESSED U/S. 143(1 ) OF THE ACT ACCEPTING THE RETURN . SUBSEQUENTLY, A SSESSMENT WAS REOPENED U/S. 147 OF THE ACT AND COMPLETED THE RE - ASSESSMENT U/S. 143(3) R.W.S 147 OF THE ACT DETERMINING THE INCOME AT . 2,04,340 / - . WHILE COMPLETING THE REASSESSMENT THE ASSESSING OFFICER TREATED PURCHASES OF . 17,88,962 / - MADE FROM VARIOUS DEALERS AS N ON - GENUINE ON THE BASIS OF THE INFORMATION RECEIVED FROM DGIT (INVESTIGATION), MUMBAI THAT ASSESSEE HAS RECEIVED ACCOMMODATION ENTRIES FROM VARIOUS DEALERS WITHOUT MAKING ANY PURCHASES BUT MADE PURCHASES ONLY IN GRAY MARKET. THE ASSESSING OFFICER TREATED SUCH PURCHASES AS NON - GENUINE AS THE ASSESSEE COULD NOT PRODUCE ANY DELIVERY CHALLAN TO PROVE THAT THE DELIVERY OF GOODS HAS BEEN ACTUALLY RECEIVED BY THE ASSESSEE FROM THE ALLEGED SUPPLIERS. HOWEVER, THE ASSESSING OFFICER TREATED ENTIRE ALLEGED BOGUS PUR CHASES AS NON - GENUINE AND BROUGHT TO TAX AN AMOUNT OF . 17,88,962 / - FOR THE A.Y.20 1 0 - 11. ON FURTHER APPEAL LD.CIT(A) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE RESTRICTED THE ADDITION TO 12.5% OF THE PURCHASES. SUBSEQUENTLY, ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS AND LEVIED PENALTY OF . 5,56,651/ - U/S. 271(1)(C) OF THE ACT FOR THE 3 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP A.Y.20 10 - 11. , STATING THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF ITS INCOME AND CONCEALED ITS INCOME WITHIN THE MEANING OF SECTION 271(1)(C) R.W. EXPLAN ATION 1 OF THE ACT. ON APPEAL THE LD.CIT(A) DELETED THE PENALTY SINCE THE DISALLOWANCE WAS MADE BY MAKING ESTIMATION OF GROSS PROFIT ON THE PURCHASES. AGAINST THIS ORDER OF THE LD.CIT(A), REVENUE IS IN APPEAL BEFORE US. 3. INSPITE OF ISSUE OF NOTICE NONE AP PEARED ON BEHALF OF ASSESSEE NOR ANY ADJOURNMENT WAS SOUGHT. THEREFORE, WE PROCEED TO DISPOSE OFF THIS APPEAL ON HEARING LD.DR ON MERITS. 4. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE ASSESSING OFFICER. 5. WE HAVE HEARD LD. DR , PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS A SETTLED POSITION OF LAW THAT PENALTY CANNOT BE LEVIED WHEN AN ADHOC ESTIMATION IS MADE. IN THE INSTANT CASE THE ASSESSING OFFICER TREATED ENTIRE ALLEGED BOGUS PURCHASES AS NON - GENUINE AND LD.CIT(A) R ESTRICTED THE ADDITION TO 12.5% OF THE PURCHASES. ON IDENTICAL SITUATIONS THE COORDINATE BENCH IN THE CASE OF SHRI DEEPAK GOGRI V. INCOME TAX OFFICER IN ITA.NO. 1396/MUM/2017 DATED 23.11.2017 HELD THAT NO PENALTY IS LEVIABLE OBSERVING AS UNDER: - 4 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP 6. WE H AVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IN SO FAR AS THE PENALTY LEVIED ON ESTIMATION OF PROFIT ELEMENT ON PURCHASES IS CONCERNED, WE ARE OF THE VIEW THAT ASSESSING OFFICER HAD MADE ONLY ADHOC ESTIMATION OF PROFIT ON CERTAIN PURCHASES TREATED AS UNEXPLAINED EXPENDITURE. ASSESSING OFFICER DID NOT DOUBT THE SALES MADE BY THE ASSESSEE FROM OUT OF SUCH PURCHASES. ASSESSING OFFICER BASED ON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V. SIMIT P. SETH [356 ITR 451] ESTIMATED THE PROFIT ELEMENT IN SUCH PURCHASES AT 12.5% AND BY REDUCING THE GROSS PROFIT ALREADY DECLARED BY THE ASSESSEE. IN THE CIRCUMSTANCES, WE HOLD THAT THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS AS THE P ROFIT ELEMENT WAS DETERMINED BY WAY OF ADHOC ESTIMATION. COMING TO THE INTEREST, THE ASSESSEE FURNISHED COMPLETE DETAILS IN THE RETURN OF INCOME AND MADE A CLAIM AND SIMPLY BECAUSE THE CLAIM IS DENIED AND CANNOT LEAD TO FURNISHING OF INACCURATE PARTICULAR S OR CONCEALMENT OF INCOME. NO ALLEGATION BY ASSESSING OFFICER THAT THE ASSESSEE FAILED TO DISCLOSE THE PARTICULARS RELATING TO ITS CLAIM IN THE RETURN OF INCOME. THUS WE HOLD THAT THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THUS WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. 6. SIMILARLY, IN THE CASE OF DCIT V. MANOHAR MANAK, ALLOYS PVT. LTD IN ITA NO. 5586/MUM/2015 DATED 16.01.2017 THE COORDINATE BENCH HELD AS UNDER: - 9. WE HAVE HEARD THE RIVAL PARTIES AND CAREFULLY CONSIDERED MATERIAL PLACED BEFORE US INCLUDING THE ORDER OF THE AUTHORITIES BELOW. WE FIND FROM THE ASSESSMENT ORDER THAT THE AO HAS MADE AN ADDITION OF RS.45,76,587/ - BEING 5% ON TOTAL PURCHASES ON ESTIMATED B ASIS IN ORDER TO BRING THE BOGUS PURCHASES TO TAX ON THE BASIS OF INFORMATION RECEIVED FROM THE THIRD PARTY I.E. STATE SALES TAX DEPARTMENT AND DDIT(INV) V(I), MUMBAI WHICH WAS NOT CHALLENGED BY THE ASSESSEE BEFORE THE FAA AND ATTAINED FINALITY. THEREAF TER THE AO LEVIED PENALTY U/S 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSEE DID NOT CHALLENGE THE ASSESSMENT ORDER AND ACCEPTED ADDITIONS SO MADE THEREBY ACCEPTING THE CONCEALMENT OF INCOME. WE FIND FROM THE RECORD THAT THE ADDITIONS AS MADE BY THE AO WAS A PURE ESTIMATE AND NOTHING CONCRETE AS TO BOGUS PURCHASES WERE BROUGHT ON RECORDS BY THE AO BY MAKING ANY FURTHER ENQUIRIES OR INVESTIGATION. IN OUR VIEW THE PENALTY CANNOT BE IMPOSED WHERE THE ADDITIONS ARE MADE ON ESTIMATE BASIS. THE TRIBUNAL H AS CONSIDERED 5 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP AN IDENTICAL ISSUE IN THE CASE OF DEEPAK POPATLAL GALA, IN ITA NO. 5920/M/13 AND VIDE ORDER DATED 27.3.2015, IT HAS HELD AS UNDER: - 10. THE NEXT ISSUE RELATES TO DISALLOWANCE MADE OUT OF PURCHASES AND ASSESSED U/S 69C OF THE ACT. WE HEARD T HE PARTIES AND PERUSED THE RECORD. THE TOTAL PURCHASE EXPENDITURE CLAIMED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION WAS RS.7,36,27,555/ - . THE AO NOTICED THAT THE SALES TAX DEPARTMENT OF GOVERNMENT OF MAHARASHTRA HAS LISTED OUT NAMES OF CERTAIN DE ALERS, WHO WERE ALLEGED TO HAVE BEEN PROVIDING ACCOMMODATION ENTRIES WITHOUT DOING ACTUAL BUSINESS. THE AO NOTICED THAT THE ASSESSEE MADE PURCHASES TO THE TUNE OF RS.38.69 LAKHS FROM TWO PARTIES NAMED M/S UMIYA SALES AGENCY PVT LTD AND M/S MERCURY ENTERPRI SES, WHOSE NAMES FOUND PLACE IN THE LIST PROVIDED BY THE SALES TAX DEPARTMENT. THE AO PLACED FULL RELIANCE ON THE ENQUIRIES CONDUCTED BY SALES TAX DEPARTMENT IN RESPECT OF THE PARTIES, REFERRED ABOVE. ACCORDINGLY, THE AO TOOK THE VIEW THAT THE PURCHASES TO THE TUNE OF RS.38.69 LAKHS HAVE TO BE TREATED AS UNEXPLAINED EXPENDITURE. ACCORDINGLY, HE ASSESSED THE SAME U/S 69C OF THE ACT. 11. THE LD. CIT(A) DELETED THE ADDITION AND HENCE THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 12. THE LD. DR STRONGLY PLACE D RELIANCE ON THE ORDER OF ASSESSING OFFICER. 13. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT THE ADDITIONS MADE IN THE CASE OF SOME OTHER ASSESSES ON IDENTICAL REASONS HAVE BEEN DELETED BY THE CO - ORDINATE BENCHES OF THE TRIBUNAL IN THE FOLLOWING CASES : A) RAMESH KUMAR AND CO V/S ACIT IN ITA NO.2959/MUM/2014 (AY - 2010 - 11) DATED 28.11.2014; B) DCIT V/S SHRI RAJEEV G KALATHIL IN ITA NO.6727/MUM/2012 (AY - 2009 - 10) DATED 20.8.2014; AND C) SHRI GANPATRAJ A SANGHAVI V/S ACIT IN ITA NO. 2826/MUM/2013 (AY - 2009 - 10) DATED 5.11.2014 IN ALL THE ABOVE SAID CASES, THE CO - ORDINATE BENCHES OF THE TRIBUNAL HAS HELD THAT THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION ON THE BASIS OF STATEMENTS GIVEN BY THE THIRD PARTIES BEFORE THE SALES TAX DEPARTMENT, WITHOUT C ONDUCTING ANY OTHER INVESTIGATION. IN THE INSTANT CASE ALSO, THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITION ON THE BASIS OF STATEMENTS GIVEN BY THE PARTIES BEFORE THE SALES TAX DEPARTMENT. WE NOTICE THAT THE LD.CIT(A) HAS TAKEN NOTE OF THE FACT THAT NO SALES COULD BE EFFECTED WITHOUT PURCHASES. HE 6 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP HAS FURTHER PLACED RELIANCE ON THE DECISION RENDERED BY HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. M.K. BROTHERS (163 ITR 249). HE HAS FURTHER RELIED UPON THE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF ITO VS. PREMANAND (2008)(25 SOT 11)(JODH), WHEREIN IT HAS BEEN HELD THAT WHERE THE AO HAS MADE ADDITION MERELY ON THE BASIS OF OBSERVATIONS MADE BY THE SALES TAX DEPT AND HAS NOT CONDUCTED ANY INDEPENDENT ENQUIRIES FOR MAKING THE ADDITION ESPECIALL Y IN A CASE WHERE THE ASSESSEE HAS DISCHARGED ITS PRIMARY ONUS OF SHOWING BOOKS OF ACCOUNT, PAYMENT BY WAY OF ACCOUNT PAYEE CHEQUE AND PRODUCING VOUCHERS FOR SALE OF GOODS, SUCH AN ADDITION COULD NOT BE SUSTAINED. THE LD CIT(A) HAS ALSO APPRECIATED THE CON TENTIONS OF THE ASSESSEE THAT HE WAS NOT PROVIDED WITH AN OPPORTUNITY TO CROSS EXAMINE THE SELLERS, WHICH IS REQUIRED TO BE GIVEN AS PER THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF PONKUNNAM TRADERS (83 ITR 508 & 102 ITR 366). ACCORDINGLY, THE LD CIT(A) HAS DELETED THE IMPUGNED ADDITION. ON A CAREFUL PERUSAL OF THE DECISION RENDERED BY LD CIT(A) WOULD SHOW THAT THE FIRST APPELLATE AUTHORITY HAS ANALYSED THE ISSUE IN ALL ANGLES AND APPLIED THE RATIO LAID DOWN BY THE HIGH COURTS AND TRIBUNALS IN DECIDING THIS ISSUE. HENCE, WE DO NOT FIND ANY REASON TO INTERFERE WITH HIS ORDER ON THIS ISSUE. WE ALSO FIND THAT IN THE FOLLOWING CASES THE TRIBUNAL HAS TAKEN SIMILAR VIEW IN SOME OF THE CASE THAT ON THE BASIS OF THIRD PARTY EVIDENCE, ADDITION MADE BY THE AO CANNOT BE HELD AS GOOD LAW AND DELETED THE ADDITION WHICH ARE AS UNDER: - A) RAMESH KUMAR AND CO V/S ACIT IN ITA NO.2959/MUM/2014 (AY - 2010 - 11) DATED 28.11.2014; B) DCIT V/S SHRI RAJEEV G KALATHIL IN ITA NO.6727/MUM/2012 (AY - 2009 - 10) DATED 20.8.2 014; AND C) SHRI GANPATRAJ A SANGHAVI V/S ACIT IN ITA NO. 2826/MUM/2013 (AY - 2009 - 10) DATED 5.11.2014 10. IN ALL THE ABOVE SAID CASES, THE CO - ORDINATE BENCHES OF THE TRIBUNAL HAS HELD THAT THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION ON THE BASIS OF STATEMENTS GIVEN BY THE THIRD PARTIES BEFORE THE SALES TAX DEPARTMENT, WITHOUT CONDUCTING ANY OTHER INVESTIGA TION. IN THE INSTANT CASE ALSO, THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITION ON THE BASIS OF STATEMENTS GIVEN BY THE PARTIES BEFORE THE SALES TAX DEPARTMENT. CONSIDERING THE FACTS AS DISCUSSED HEREINABOVE, WE ARE OF THE CONSIDERED OPINION THAT IN VIEW OF THE RATIO IN THE VARIOUS DECISIONS AS ABOVE PENALTY CANNOT BE SUSTAINED. IT IS ALSO A SETTLED LEGAL POSITION OF LAW THAT PENALTY CANNOT BE LEVIED WHEREIN THE ASSESSMENT IS MADE ON ESTIMATION BASIS. ACCORDINGLY, 7 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP WE ARE INCLINED TO UPHOLD THE ORDER PASSED BY THE LD.CIT(A) BY DISMISSING THE APPEAL OF THE REVENUE. 7. FURTHER, THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF HARIGOPAL SINGH V . CIT [258 ITR 85] HELD AS UNDER: - 3. ON FURTHER APPEAL, THE TRIBUNAL REDUCED THE ADDITION TO RS.1,50,000. HENCE, THE INCOME WAS FINALLY ASSESSED AT RS.1,50,000 AGAINST THE DECLARED INCOME OF RS. 52,000. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS AGAINST THE ASSESSEE BY INVOKING SECTION 271(1)(C) ALONG WITH THE EXPLANATION 1(B) OF THE ACT ON THE PLEA THAT HE HAD CONCEALED THE PARTICULARS OF HIS INCOME. A SHOW - CAUSE NOTICE WAS ISSUED TO HIM UNDER SECTION 274 READ WITH SECTION 271(L) (C) OF THE ACT. IN REPLY THERETO, THE ASSESSEE PLEADED THAT SINCE NO POSITIVE CONCEALMENT HAD BEEN DETECTED BY THE DEPARTMENT AND THE ADDITION WAS MADE IN HIS INCOME ONLY ON ESTIMATE BASIS, NO PENALTY UNDER SECTION 271(1)(C) OF THE ACT COULD BE IMPOSED BECAUSE THE ASSESSEE'S INCOME ON ESTIMATE BASIS KEEPING IN VIEW HIS HOUSEHOLD EXPENSES AS WELL AS THE STATEMENT OF ACCRETION TO HIS ASSETS DURING THE YEAR UNDER CONSI DERATION, WAS BONA FIDE. THE ASSESSING OFFICER DID NOT ACCEPT THE REPLY AND FOUND THAT SINCE THE ASSESSEE HAD NOT FILED ANY FRESH EVIDENCE IN PENALTY PROCEEDINGS TO PROVE THAT THERE WAS NO ATTEMPT ON HIS PART TO CONCEAL HIS INCOME, HE, BY HIS ORDER DATED M ARCH 10, 1992, IMPOSED A PENALTY OF RS. 50,000. FEELING AGGRIEVED BY THIS ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS), PATIALA, WHO ALLOWED THE SAME HOLDING THAT THERE WAS INDEED NO POSITIVE EVIDENCE WHATEVER TO SHOW THAT THE APPELLANT'S INCOME DURING THE YEAR IN QUESTION WAS, IN FACT, MORE THAN THE INCOME RETURNED BY HIM AND THAT ESTIMATED ADDITIONS IN THE RETURNED INCOME DO NOT ATTRACT PENALTY UNDER SECTION 271(1) (C) OF THE ACT. THE REVENUE WENT UP IN APPEAL BEFORE THE INCOME - TAX APPELLATE TRIBUNAL WHICH WAS ALLOWED BY ORDER DATED MAY 30, 2001. IT IS AGAINST THIS ORDER THAT THE PRESENT APPEAL HAS BEEN FILED WHICH RAISES THE AFORESAID QUESTION OF LAW. 4. IN ORDER TO ATTRACT CLAUSE (C) OF SECTION 271(1) OF THE ACT, IT IS NECESSARY THAT THERE MUST BE CONCEALMENT BY THE ASSESSEE OF THE PARTICULARS OF HIS INCOME OR IF HE FURNISHES INACCURATE PARTICULARS OF SUCH INCOME. WHAT IS TO BE SEEN IS WHETHER THE ASSESSEE IN THE PRESENT CASE HAD CONCEALED HIS INCOME AS HELD BY THE ASSESSING OFFICER AND THE TRIBUNAL. HE HAD NOT MAINTAINED ANY ACCOUNTS AND HE FILED HIS RETURN OF INCOME ON ESTIMATE BASIS. THE ASSESSING OFFICER DID NOT AGREE WITH THE ESTIMATE OF THE ASSESSEE AND BROUGHT HIS INCOME TO TAX BY INCREASING IT TO RS. 2,07,500. THIS, TOO, WAS ON 8 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP ESTIMATE BASIS. THE TRIBUNAL AGREED THAT THE INCOME OF THE ASSESSEE HAD TO BE ASSESSED ON AN ESTIMATE OF THE TURNOVER BUT WAS OF THE VIEW THAT THE ESTIMATE AS MADE BY THE ASSESSING OFFICER WAS HIGHLY EXCESSIVE AND IT FIXED THE TOTAL INCOME OF THE ASSESSEE AT RS. 1,50,000 FOR THE YEAR UNDER APPEAL. IT IS, THUS, CLEAR THAT THERE WAS A DIFFERENCE OF OPINION AS REGARDS THE ESTIMATE OF THE I NCOME OF THE ASSESSEE. SINCE THE ASSESSING OFFICER AND THE TRIBUNAL ADOPTED DIFFERENT ESTIMATES IN ASSESSING THE INCOME OF THE ASSESSEE, IT CANNOT BE SAID THAT THE ASSESSEE HAD 'CONCEALED THE PARTICULARS OF HIS INCOME' SO AS TO ATTRACT CLAUSE (C) OF SECTION 271(1) OF THE ACT. THERE IS NOT EVEN AN IOTA OF EVIDENCE ON THE RECORD TO SHOW THAT THE INCOME OF THE ASSESSEE DURING THE YEAR UNDER APPEAL WAS MORE THAN THE INCOME RETURNED BY HIM. ADDITIONS IN HIS IN COME WERE MADE, AS ALREADY OBSERVED, ON ESTIMATE BASIS AND THAT BY ITSELF DOES NOT LEAD TO THE CONCLUSION THAT THE ASSESSEE EITHER CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THERE HAS TO BE A POSITIVE ACT OF CONCEALMENT ON HIS PART AND THE ONUS TO PROVE THIS IS ON THE DEPARTMENT. WE ARE ALSO OF THE CONSIDERED VIEW THAT THE TRIBUNAL GROSSLY ERRED IN LAW IN RELYING ON EXPLANATION 1(B) TO SECTION 271(1)(C) OF THE ACT TO RAISE A PRESUMPTION AGAINST THE ASSESSEE. THE ASSESSEE HAD JUSTIFIED HIS ESTIMATE OF INCOME ON THE BASIS OF HOUSEHOLD EXPENDITURE AND OTHER INVESTMENTS MADE DURING THE RELEVANT PERIOD. IT IS NOT THE CASE OF THE REVENUE THAT HE HAD, IN FACT, INCU RRED EXPENDITURE IN EXCESS OF WHAT HE HAD STATED. IN THIS VIEW OF THE MATTER, IT CANNOT BE SAID THAT THE EXPLANATION FURNISHED BY THE ASSESSEE HAD NOT BEEN SUBSTANTIATED OR THAT HE HAD FAILED TO PROVE THAT SUCH EXPLANATION WAS NOT BONA FIDE. 5. IN THE RESULT, THE APPEAL IS ALLOWED AND THE QUESTION POSED IN THE EARLIER PART OF THE ORDER IS ANSWERED IN THE NEGATIVE HOLDING THAT THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT ARE NOT ATTRACTED TO CASES WH ERE THE INCOME OF AN ASSESSEE IS ASSESSED ON ESTIMATE BASIS AND ADDITIONS ARE MADE THEREIN ON THAT BASIS. 8. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V. AERO TRADERS PVT. LTD., [322 ITR 316] WHEREIN THE HON'BLE HIGH COUR T AFFIRMED THE ORDER OF THE TRIBUNAL IN HOLDING THAT ESTIMATED RATE OF PROFIT APPLIED ON THE TURNOVER OF THE ASSESSEE DOES NOT AMOUNT TO CONCEALMENT OR FURNISHING INACCURATE PARTICULARS. 9 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP 9. IN THE CASE ON HAND THE ASSESSING OFFICER TREATED ENTIRE BOGUS PURCHASES AS NON - GENUINE AND LD.CIT(A) ESTIMATED THE GROSS PROFIT ON THE ALLEGED NON - GENUINE PURCHASES @12.5% WITHOUT THERE BEING ANY CONCLUSIVE PROOF OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. THUS, WE DO NOT OBSERVE ANY INFIRMITY IN THE ORDER PASSED BY THE LD.CIT( A) IN DELETING THE PENALTY U/S. 271(1)(C) OF THE ACT LEVIED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR UNDER CONSIDERATION . GROUNDS RAIS ED BY THE REVENUE ARE REJECTED. 10. EVEN OTHERWISE ALSO WE FIND THAT THE TAX EFFECT IN THIS APPEAL IS . 5,56,651/ - FOR THE A.Y. 20 10 - 11 WHICH IS LESS THAN .50 LAKHS AND THEREFORE THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO. 17/2019 DATED 08.08 .2019. WHEN THIS WAS POINTED OUT LD. DR SUBMITTED THAT IT IS COVERED UNDER EXCEPTIONS PROVIDED UNDER CLAUSE 10(E) OF THE CIRCULAR WHICH PROVIDES THAT WHEN ADDITIONS ARE MADE BASED ON THE INFORMATION RECEIVED FROM EXTERNAL SOURCES THE REVENUE APPEALS CAN NOT BE DISMISSED ON MONETARY GROUNDS. LD. DR SUBMITTED THAT THIS IS A CASE WHERE INFORMATION HAS BEEN RECEIVED FROM DGIT (INV.) BASED ON WHICH R E - ASSESSMENT WAS MADE U/S. 147 OF THE ACT AND THUS FALLS UNDER THE EXCEPTION AS THE INFORMATION WAS RECEIVED FROM EXTERNAL SOURCES. 10 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP 11. ON A PERUSAL OF THE RE - ASSESSMENT ORDER, WE OBSERVE THAT THE RE - ASSESSMENT U/S. 143 R.W.S. 147 OF THE ACT WAS MADE BASED ON THE INFORMATION RECEIVED FROM DGIT(INV.,), MUMBAI. AS HELD BY THE COORDINATE BENCH IN THE CASE OF ITO V. LATE S HRI AMARCHAND P. SHAH (LEGAL HEIR SHRI NITIN A. SHAH) IN ITA.NO. 818 TO 820/MUM/2017 DATED 08.07.2019, DGIT (INV.,), MUMBAI IS NOT AN EXTERNAL AGENCY BUT IT IS ONLY AN INTERNAL AGENCY OF THE REVENUE DEPARTMENT. IN ANY CASE THE MODIFIED INSTRUCTIONS DATED 20.08.2018 APPLIES ONLY FOR THE ASSESSMENT PROCEEDINGS AND IT DOES NOT APPLY TO PENALTY PROCEEDINGS. PENALTY IS LEVIED BASED ON THE ADDITION/DISALLOWANCE MADE IN THE QUANTUM ASSESSMENT PROCEEDINGS WHICH IS SEPARATE FROM THE PENALTY PROCEEDINGS. SINCE THE REVENUE EFFECT IN THESE CASES IS LESS THAN .50 LAKHS, WE REJECT THE GROUNDS RAISED BY THE REVENUE. 12. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 30 .07.2021 AS PER RULE 34(4) OF ITAT RULES BY PLACING THE PRONOUNCEMENT LIST IN TH E NOTICE BOARD. SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 30 / 07 / 2021 GIRIDHAR, SR.PS 11 ITA.NO. 5773/MUM/2019 (A.Y: 2010 - 11) M/S. GANESH ENGINEERING WORKSHOP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM