ACIT 21(3), MUMBAI V. MS.VEENA VASANT SHAH (PROP.M/S.BHAGAT JEWELLERS), MUMBAI

ITA 5889/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4005 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 12-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHAMMED RIZWAN
• Keywords: Bogus purchase
• Section: 143(1); 201; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI PAWAN SINGH, JM & SHRI S . RIFAUR RAHMAN, AM ./ I.T.A. NO . 5889 / MUM/ 2018 ( / ASSESSMENT YEAR: 2009 - 10 ) ./ I.T.A. NO . 5886 / MUM/ 2018 ( / ASSESSMENT YEAR: 2010 - 11 ) A.C.I.T 21(3) ROOM NO. 209, 2 ND FL., PIRAMAL CHAMBER, LALBAUG, MUMBAI - 400012. / VS. MS. VEENA VASANT SHAH PROP: M/S. BHAGAT JEWELLERS) 10, DADARKAR BUILDING, RANADE ROAD, DADAR (W), MUMBAI - 400 028. ./ ./ PAN NO. AA QPS 1795 N ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI MOHAMMED RIZWAN, DR / RESPONDENTBY : NONE / DATE OF HEARING : 12.12.2019 / DATE OF PRONOUNCEMENT : 18 .12.2019 / O R D E R PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER: THE PRESENT TWO APPEALS HAVE BEEN FILED BY THE REVENUE AGAINST THE SEPARATE ORDER OF COMMISSIONER OF INCOME TAX ITA NO. 5889/MUM/18 ITA NO. 5886/MUM/2018 A.YS 2009 - 10 & 2010 - 11 MS. VEENA VASANT SHAH PROP: M/S. BHAGAT JEWELLRS - 2 - (APPEALS) - 33 , MUMBAI, BOTH DATED 24 - 07 - 2018 FOR THE ASSESSMENT YEARS ( IN SHORT, A.Y) 20 09 - 10 & 201 0 - 11 RESPECTIVELY , WHEREBY THE LD. CIT(A) ALLOWED BOTH THE APPEAL S FILED BY THE ASSESSEE AGAINST THE PENAL TY ORDER S PASSED U/S 271 (1) (C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) BY DELETING THE SAME . . 2. SINCE THE ISSUES RAISED IN BOTH THE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THESE APPEALS ARE CLUBBED, HEARD AND DISPOSED O F BY THIS CONSOLIDATED ORDER. FIRSTLY, WE ARE TAKING ITA NO. 5889 /MUM/201 8 FOR AY 20 09 - 10 FILED BY THE REVENUE. ITA NO. 5889/MUM/2018 FOR AY 2009 - 10 3 . BRIEF FACTS OF THE CASE ARE THAT THAT ASSESSEE FILED HER RETURN OF INCOME FOR THE A.Y 20 09 - 10 ON 30 .09.20 09 , DECLARING TOTAL INCOME OF RS. 69,41,460/ - WHICH WAS PROCESSED/ ACCEPTED U/S 143(1) OF THE ACT. SUBSEQUENTLY INFORMATION RECEIVED FROM SALES TAX DEPARTMENT AND DGIT (INV.) MUMBAI INFORMING THAT ASSESSEE HAS MADE PURCHASES ITA NO. 5889/MUM/18 ITA NO. 5886/MUM/2018 A.YS 2009 - 10 & 2010 - 11 MS. VEENA VASANT SHAH PROP: M/S. BHAGAT JEWELLRS - 3 - FROM HAWALA ENTRY PROVID ER. ACCORDINGLY , THE ASSESSMENT WAS REOPENED , THE REASSESSMENT WAS COMPLETED VIDE ORDER DATED 12 - 02 - 2015 BY DETERMINING THE TOTAL INCOME AT RS. 7 2,73,280/ - . IN THE ABOVE ASSESSMENT A.O ESTIMATED THE GROSS PROFIT ON SUCH ALLEGED TRANSACTION @ 12.5 % MADE B Y THE ASSESSEE AND MADE ADDITION OF RS. 3,31,819/ - ON ACCOUNT OF BOGUS PURCHASE TRANSACTION. T HE A.O ALSO INITIATED PENALTY PROCEEDINGS U/S 271 (1) (C) OF THE ACT BY ISSU ING OF NOTICE U/S 274 OF THE ACT AND LEVIED PENALTY OF RS. 1,12,785/ - (A.Y 2009 - 10) AN D RS. 62,029/ - (AY 2010 - 11) U/S. 271(1) ( C) OF THE ACT VIDE ORDER DATED 14 - 08 - 2015 /18 - 08 - 2015 . 4 . AGGRIEVED WITH THE ORDER S OF THE A.O THE ASSESSEE PREFERRED APPEAL S BEFORE THE CIT(A). 5 . AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND BY RELYING ON THE DECISION S OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ITO VS. ETCO TELECOM LTD., IN ITA NO. 5243, 5998 & 5999/MUM/2012 AND IN THE CASE OF ACIT VS. M/S BALAJI CONSTRUCTIONS IN ITA NO. 217/MUM/2015 AND ITA NOS. 5531, 5532/M UM/2018 IN THE CASE OF ITO VS. SMT. SEEMAN R. SINGH, ORDER DT. 10 - 12 - 2019 HAS DELETED THE ITA NO. 5889/MUM/18 ITA NO. 5886/MUM/2018 A.YS 2009 - 10 & 2010 - 11 MS. VEENA VASANT SHAH PROP: M/S. BHAGAT JEWELLRS - 4 - PENALTY LEVIED BY THE A.O. AGGRIEVED WITH THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6 . AT THE TIME OF HEARING, IT IS BROUGHT TO OUR NOTICE THAT THE PENALTY WAS LEVIED ON THE ALLEGE D BOGUS PURCHASES AND THE INCOME WAS ESTIMATED , THE SAME WAS ALSO CONFIRMED BY THE LD. DR. THEREFORE, IN OUR CONSIDERED VIEW AND IN THE CATENA OF CASES THE COURTS HAVE HELD THAT THE PENALTY CANNOT BE LEVIED WHEN THE INCOME OF THE ASSESSEE IS ESTIMATED. THEREFORE, THE PENALTY DELETED BY THE CIT(A) IS JUSTIFIED AND PROPER. ACCORDINGLY THE APPEAL OF THE REVENUE IS DISMISSED. 7 . THE FACTS IN ITA NO S . 5531 & 5532/MUM/2018 ORDER DT. 10 - 12 - 2019 ARE ALSO SIMILAR TO THE ABOVE CASE EXCEP T VARIANTS IN FIGURES. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 5889/MUM/2018 A.Y 2009 - 10 8 . THE FACTS IN AY 2010 - 11 (ITA NO. 5886/MUM /18) ARE SIMILAR TO A.Y 2009 - 10 (ITA NO. 5889/MUM/18), THEREFORE, THE FINDINGS AS GIVEN IN ITA NO. 5886/MUM/18, ARE ITA NO. 5889/MUM/18 ITA NO. 5886/MUM/2018 A.YS 2009 - 10 & 2010 - 11 MS. VEENA VASANT SHAH PROP: M/S. BHAGAT JEWELLRS - 5 - APPLICABLE TO THIS AY ALSO. ACCORDINGLY, THE GROUND S RAISED BY THE REVENUE IN ITS BOTH THE APPEALS ARE DISMISSED. 9 . IN THE RESULT , THE APPEAL S FILED BY THE REVENUE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 18 /12 /201 9 . SD/ - SD/ - ( PAWAN SINGH ) ( S RIFAUR RAHMAN ) (JUDICIAL MEMBER) ACCOUNTANT MEMBER MUMBAI, DATED 18 /12 /20 1 9 **PP,S PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) 4. ( ) / CONCERNED CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// 1. / ( ASST. REGISTRAR) , / ITAT, MUMBAI 6. DATE