ITO - 27 (2)(2), MUMBAI V. MANISH P. TOLIA, MUMBAI

ITA 6287/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6456 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 6287 / MUM . /201 8 ( ASSESSMENT YEAR : 20 09 10 ) INCOME TAX OFFICER WARD 2 7 ( 2 ) ( 2 ) , MUMBAI . APPELLANT V/S MANISH P. TOLIA B 29, MAHAVIR CHHAYA VALLABH BAUG GHATKOPAR (E), MUMBAI 400 077 PAN AAXPT0921A . RESPONDENT REVENUE BY : SMT. JOTHILAKSHMI NAYAK ASSESSEE BY : NONE DATE OF HEARING 09 .01.2020 DATE OF ORDER 05.02.2020 O R D E R PER SAKTIJIT DEY. J.M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 16 TH AUGUST 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 75, MUMBAI, DELETING THE PENALTY IMPOSED OF ` 10,460, UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 2009 10. WHEN THE APPEAL WAS CALLED FOR HEARING NO ONE WAS PRESENT TO REPRESENT THE CASE ON BEHALF OF THE ASSESSEE. THEREFORE, WE PROCEED TO 2 MANISH P. TOLIA DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 2. BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF TRADING IN CHEMICAL S . FOR THE A SSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 31 ST JULY 2009, DECLARING TOTAL INCOME OF ` 9,31,697. ON THE BASIS OF INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, THROUGH THE OFFICE OF T HE DGIT (INV.), MUMBAI, THAT PURCHASES WORTH ` 33,862, CLAIMED TO HAVE BEEN MADE DURING THE YEAR FROM CHEMICO INDUSTRIES IS NON GENUINE AS THE SAID PARTY HAS BEEN IDENTIFIED AS A HAWALA OPERATOR, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. ULTIMATELY, HE PASSED THE ASSESSMENT ORDER BY DISALLOWING THE ENTIRE PURCHASE OF ` 33,862, AND ADDING BACK TO THE INCOME OF THE ASSESSEE. CONTESTING THE AFORESAID ADDITION, THE ASSE SSEE PREFERRED APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) , WHO R ESTRICTED THE ADDITION TO THE PRO FIT ELEMENT ESTIMATED @ 12.5% ON THE NON GENUINE PURCHASES. IN THE MEAN WHILE, THE ASSESSING OFFICER ON THE BASIS OF ADDITION MADE BY HIM HAD INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND ULTIMATELY PASSED AN ORDER ON 7 TH AUGUST 2015, IMPOSING PENALTY OF ` 10,460, UNDER SECTION 271(1)(C) OF THE ACT, ALLEGING FURNISHING OF 3 MANISH P. TOLIA INACCURATE PARTICULARS OF INCOME. AGAINST THE PENALTY ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIR ST APPELLATE AUTHORITY. 3. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. 4. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RE CORD. IT IS EVIDENT , THOUGH , THE ASSESSING OFFICER HAS DISALLOWED THE PURCHASES IN TOTALITY AND MADE 100% ADDITION REPRESENTING SUCH PURCHASES TO THE INCOME OF THE ASSESSEE, HOWEVER, WHILE CONSIDERING ASSESSEES APPE AL CONTESTING SUCH ADDITION, LEARNED COM MISSIONER (APPEALS) HAS RESTRICTED SUCH ADDITION TO THE PROFIT ELEMENT EMBEDDED IN THE ALLEGED NON GENUINE PURCHASES BY ESTIMATING IT @ 12.5%. THUS, AS A RESULT OF SUCH ORDER OF LEARNED COMMISSIONER (APPEALS), THE ADDITION HAS BEEN REDUCED TO ` 4,232. WHER EAS, THE ASSESSING OFFICER HAS IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE ADDITION OF ` 33,862. BE THAT AS IT MAY, THE ADDI TION ULTIMATELY SUSTAINED BY LEARNED COMMISSIONER (APPEALS) IS ON THE B ASIS OF ESTIMATION OF PROFIT. THAT BEING THE CA SE, WE DO NOT FIN D ANY INFIRMITY IN THE ORDER OF LEARNED COMMISSIONER (APPEALS) IN DELETING THE PENALTY IMPOSED. GROUNDS RAISED ARE DISMISSED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 05.02.2020 4 MANISH P. TOLIA SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 05.02.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI