ACIT 12 (3)(2), MUMBAI V. M/S LUTF FOODS PVT LTD., MUMBAI

ITA 5945/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5180 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 17-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Assessee Lawyers: VIPUL J SHAH
• Keywords: Bogus purchase
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , A MUMBAI BEFORE : SHRI M.BALAGANESH, AM & SHRI PAVAN KUMAR GADALE , JM ITA NO. 5945 /MUM/ 2019 ( ASSESSMENT YEAR : 20 11 - 12 ) ACIT 12(3)(2) 1 ST FLOOR , AAYAKAR BHAVAN M.K.ROAD, MUMBAI - 400 020 VS. MN/ S. LUTF FOODS PVT. LTD., C - 62, BR IJESH APARTMENT HARIDAS NAGAR SHIMPOLI, BORIVALI EAST MUMBAI - 400 092 PAN/GIR NO. AA ACL1073F (APPELLANT ) .. (RESPONDENT ) REVENUE BY SHRI BRAJENDRA KUMAR ASSESSEE BY SHRI VIPUL J SHAH DATE OF HEARING 19 / 04 /202 1 DATE OF PRONOUNCEMENT 19 / 04 /202 1 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 5945 /MUM/2019 FOR A.Y. 2011 - 12 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 21 , MUMBAI IN APPEAL NO. CIT( A) - 21/ACIT - 12(3 )(2)/IT - 561/2017 - 18 DATED 30/05/ 2019 (LD. CIT(A) IN SHORT) IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) . 2. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON R ECORD . WE FIND THAT THE LD. AO HAD LEVIED PENALTY ON THE ESTIMATED ADDITION MADE ON ACCOUNT OF BOGUS PURCHASES. THIS PENALTY LEVIED ITA NO . 5945 /MUM/ 2019 M/S. LUFT FOODS PVT. LTD., 2 U/S.271(1)(C) OF THE ACT ON AN ADDITION MADE ON ACCOUNT OF BOGUS PURCHASES WAS DELETED BY THE LD. CIT(A) ON THE PRIMARY GROU ND TH AT NO PENALTY WOULD SURVIVE ON AN ESTIMATED ADDITION. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 3. WE FIND AT THE OUTSET , THE LD AR ARGUED THAT PENALTY THAT IS IN DISPUTE BEFORE US , FALLS BELOW THE MONETARY LIMIT PRESCRIBED BY THE CBDT IN ITS CI RCULA R NO. 17/2019 DATED 08/08/2019 FOR PREFERRING APPEAL BY THE REVENUE BEFORE THIS TRIBUNAL. WE FIND THAT THE LD. DR VEHEMENTLY ARGUED THAT THE SAID CASE FALLS WITHIN THE EXCEPTION PROVIDED IN PARA 10(E) OF THE SAID CIRCULAR AND ACCORDINGLY HE ARGUED THA T THE APPEAL IS MAINTAINABLE. WE FIND THAT THE EXCEPTION PROVIDED IN PARA 10(E) OF THE CIRCULAR 17/2019 DATED 08/08/2019 IS APPLICABLE ONLY FOR THE QUANTUM PROCEEDINGS AND THE SAME CANNOT BE MADE APPLICABLE FOR PENALTY PROCEEDINGS. IT IS WELL SETTLED THAT PENA LTY AND QUANTUM ASSESSMENT PROCEEDINGS ARE DISTINCT AND SEPARATE. ACCORDINGLY, WE DISMISS THIS APPEAL OF THE REVENUE BY FOLLOWING THE AFORESAID CIRCULAR NO.17/2019 DATED 08/08/2019 AND H O LD THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. 4. IN TH E RES ULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/04/2021 SD/ - ( PAVAN KUMAR GADALE ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 19 / 04 / 202 1 KARUNA , SR.PS ITA NO . 5945 /MUM/ 2019 M/S. LUFT FOODS PVT. LTD., 3 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//