MR. SANJAY H. SHAH , MUMBAI V. ITO- 17 (3)(2), MUMBAI, MUMBAI

ITA 6091/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9022 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARTI SINGH
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , H BENCH MUMBAI BEFORE : SHRI VIKAS AWASTHY, JM & SHRI M.BALAGANESH, AM ITA NO. 6091 /MUM/ 20 19 ( ASSESSMENT YEAR : 2009 - 10 ) ITA NO. 6092 /MUM/ 2019 ( ASSESSMENT YEAR : 2010 - 11 ) & ITA NO. 6093 /MUM/ 2019 ( ASSESSMENT YEAR : 2011 - 12 ) SHRI SANJAY H SHAH 8, K M MEHTA BUILDING AHMEDABAD STREET CANRNAC BUNDER MUMBAI 400 009 VS. INCOME TAX OFFICER WARD 17(3)(2) AAYAKAR BHAVAN MAHARSHI KARVE MARG CHURCHGATE MUMBAI 400 020 PAN/GIR NO. AADPS7258P (APPELLANT ) . . (RESPONDENT ) ASSESSEE BY SHRI SATYAPRAKASH SINGH REVENUE BY MS. BHARTI SINGH DATE OF HEARING 18 / 03 /202 1 DATE OF PRONOUNCEMENT 18 / 03 /202 1 / O R D E R PER M. BALAGANESH (A.M) : TH ESE APPEAL S IN ITA NO S . 6091 - 6093/MUM/2019 FOR A.Y. 2009 - 10, 2010 - 11 & 2011 - 12 ARISE OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 28, MUMBAI IN APPEAL NO. CIT(A) - 28/ITBA - 10148/ITO - 17(3)(2)/2018 - 19, CIT(A) - 28/ITBA - 10145/ITO - 17(3)(2)/2018 - 19 & CIT(A) - 28/ITBA - 10147/ITO - 17(3)(2)/2018 - 19 DA TED 11/09/2019 (LD. ITA NO . 6091 - 6093/MUM/2019 SHRI SANJAY H SHAH 2 CIT(A) IN SHORT) IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961. 2. THE ONLY ISSUE TO BE DECIDED IN THESE APPEALS OF THE ASSESSEE IS THAT WHETHER THE PENALTY U/S.271(1)(C) OF THE ACT COULD BE LEVIED ON DISALLOWANCE MADE ON ACCOUNT OF BOGUS PURCHASES ON AN ESTIMATED BASIS. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE LD. AO HAD MADE DISALLOWANCE @25% OF TAINTED PURCHASES IN THE ASSESSMEN T WHICH WAS ULTIMATELY BROUGHT TOWN TO 5% THEREON BY THIS TRIBUNAL IN THE QUANTUM PROCEEDINGS. SUBSEQUENTLY, THE LD. AO HAD LEVIED PENALTY FOR THE SUSTAINED ESTIMATED PROFIT PERCENTAGE OF 5% U/S.271(1)(C) OF THE ACT. HENCE, IT COULD BE SAFELY CONCLUDED THA T ULTIMATELY IN THE QUANTUM ASSESSMENT PROCEEDINGS THE DISALLOWANCE WAS MADE ONLY ON AN ESTIMATED BASIS BY ESTIMATING PROFIT PERCENTAGE AT 5% OF TAINTED PURCHASES. IT IS TRITE LAW THAT NO PENALTY U/S.271(1)(C) OF THE ACT COULD BE LEVIED ON AN ADDITION WHIC H HAS BEEN MADE ON AN ESTIMATED BASIS. HENCE, WE HEREBY DIRECT THE LD. AO TO DELETE THE PENALTY U/S.271(1)(C) OF THE ACT. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 4. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNC ED IN THE OPEN COURT ON 18 / 03 /202 1 . SD/ - ( VIKAS AWASTHY ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 18 / 03 / 2021 KARUNA , SR.PS ITA NO . 6091 - 6093/MUM/2019 SHRI SANJAY H SHAH 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//