ITO 28 (3)(5), MUMBAI V. SMT. USHA B AGARWAL , MUMBAI

ITA 6466/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8765 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 10-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA GAIKWADLD
• Keywords: Bogus purchase; Tax effect
• Section: 271(1)(c); 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUM AR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) 1 . ./ I.T.A. NO. 6466 / MUM/ 2019 ( / ASSESSMENT YEAR: 2009 - 10 ) ITO 28(3)(5), R. NO. 323, 3RD FLOOR TOWER NO. 6, VASHI RAILWAY STATION COMPLEX, NAVI MUMBAI - 400 703 / VS. SMT U SHA B. AGARWAL PROP. PANKAJ STEEL CORPORATION, 42 - A K AVERI, SECTOR, 17, VASHI, NAVI MUMBAI - 400 705 ./ ./ PAN/GIR NO. A ADPA - 7722 - N ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : MS. USHA GAIKWAD , LD. SR. DR / DATE OF HEARING : 29/07 /2021 / DATE OF PRONOUNCEMENT : 29/07/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 20 09 - 10 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME - TAX ( APPEALS ) - 26, MUMBAI [ CIT(A)] D ATED 08/07/2019 WHICH HAS DELETED THE PENALTY OF RS.79,915/ - U/S 271(1)(C) AS LEVIED BY LD. AO VIDE PENALTY ORDER DATED 28/06/2018. THOUGH NONE APPEARED FOR ASSESSEE, HOWEVER, THE MATERIAL 2 O N RECORD WAS SUFFICIENT ENOUGH FOR DISPOSAL OF THE APPEAL. THE LD. DR PLEADED FOR RESTORATION OF THE PENALTY. 2. THE ASSESSEE WAS ASSESSED U/S 143(3) R.W.S. 147 ON 17/03/2015 WHEREIN IT WAS SADDLED WITH ADDITION OF RS.18.80 LACS ON ACCOUNT OF ALLEGED BOGUS PURCHASES. UPON FURTHER APPEAL, LD. CIT(A) RESTRICTED THE SAME TO THE EXTENT OF 12.5%. CONSEQUENTLY, IMPUGNED PENALTY OF RS.79,915/ - WAS LEVIED BY LD. AO VIDE ORDER DATED 28/06/2018. UPON FURTHER APPEAL CHALLENGING LEVY OF PENALTY, LD. CIT(A) DELETED THE SAME, INTER - ALIA, BY OBSERVING THAT THE DETAILS FILED BY THE ASSESSEE WERE NOT FOUND TO BE INACCURATE OR FALSE. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 3. IN OUR CONSIDERED OPINION, THE IMPUGNED ORDER WOULD NOT REQUIRE ANY INTERFERENCE ON OU R PART FOR TWO REASONS. FIRSTLY, THE ADDITIONS WERE MERELY ESTIMATED ADDITIONS FOR UNPROVED PURCHASES AND THEREFORE, NO CASE OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME COULD BE MADE OUT AGAINST THE ASSESSEE. SECONDLY, THE RE VENUES APPEAL IS NOT MAINTAINABLE IN TERMS OF LATEST LOW TAX EFFECT CBDT CIRCULAR NO. 17/2019 DATED 08/08/2019 [F.NO.279/MISC. 142/2007 - TTJ(PT.) WHICH PRESCRIBES MINIMUM THRESHOLD LIMIT OF RS.50 LACS FOR REVENUE TO AGITATE THE MATTER FURTHER BEFORE TRIBUN AL. IT IS SETTLED LEGAL POSITION THAT QUANTUM PROCEEDINGS AND PENALTY PROCEEDINGS ARE INDEPENDENT AND DISTINCT PROCEEDINGS AND CONFIRMATION OF ADDITIONS MAY NOT BE THE SOLE GROUND FOR CONFIRMING THE PENALTY . EXTENDING THE SAME LOGIC, UNLESS SPECIFIC EXCEPT ION IS PROVIDED IN THE CIRCULAR WITH RESPECT TO PENALTY ALSO, IT COULD NOT BE CONSTRUED THAT THE PENALTY WAS TO BE TREATED AT PAR WITH QUANTUM ADDITIONS. THE CLAUSE 10(E) SPECIFICALLY APPLIES ONLY TO ADDITIONS WHICH ARE BASED ON INFORMATION RECEIVED FROM E XTERNAL 3 SOURCES. THE LEVY OF PENALTY, BY NO STRETCH OF IMAGINATION, COULD BE CONSTRUED AS ADDITION AS ENVISAGED BY CLAUSE 10(E). THEREFORE, THE SUBMISSIONS MADE BY LD. DR COULD NOT BE HONORED AND WE DECLINE TO ACCEPT THE SAME. 4. RESULTANTLY, THE APPEAL ST AND DISMISSED. ORDER PRONOUNCED ON 29 TH JULY, 2021. SD/ - SD/ - (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 29/07/2021 SR.PS, JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPO NDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.