EARTHMOVING EQUIPMENT SERVICE CORPORATON, MUMBAI V. DCIT 22( 2), MUMBAI

ITA 6617/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0834 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 31-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE LD
• Assessee Lawyers: DR K SHIVRAM; NEELAM JADHAV LD ARS
• Keywords: Bogus purchase; Unexplained expenditure
• Section: 69C; 143(3)

Judgement Text

ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.6617/MUM/2014 ( / ASSESSMENT YEAR: 2010-11) EARTHMOVING EQUIPMENT SERVICE CORPORATION 613-614 RAIKAR CHAMBERS KOOVERJI DEVSHI MARG GOVANDI MUMBAI 400 088 / VS. DEPUTY COMMISSIONER OF INCOME TAX 22(2) MUMBAI !' ./ ./PAN/GIR NO. AAAFE-1053-F ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) '$ / APPELLANT BY : DR. K.SHIVRAM & MS. NEELAM JADHAV, LD.ARS %&'$ / RESPONDENT BY : SHRI VISHWAS MUNDHE, LD. DR / DATE OF HEARING : 25/04/2017 / DATE OF PRONOUNCEMENT : 02 /05/2017 ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2010-11 ASSAILS THE ORDER OF LD. COMMISSIONER OF IN COME TAX (APPEALS)- 20 [CIT(A)], MUMBAI DATED 04/08/2014 QUA CONFIRMATION OF PENALTY U/S 271(1)(C) FOR RS.12,94,147/-. 2. FACTS LEADING TO THE DISPUTE ARE THAT THE ASSESS EE, BEING RESIDENT CORPORATE ASSESSEE, WAS ASSESSED U/S 143(3) AT RS.6 6,25,790/- VIDE ASSESSING OFFICER [AO] ORDER DATED 04/03/2013 AFTER ADDITION, INTER-ALIA, OF RS.38,17,544/- ON ACCOUNT OF UNEXPLAINED EXPENDITUR E U/S 69C AS AGAINST RETURNED INCOME OF RS.25,13,750/- E-FILED BY THE ASSESSEE ON 26/09/2010. THE ASSESSEE WAS ENGAGED IN THE BUSINES S OF CRANE HIRING AND MAINTENANCE AND REFLECTED TURNOVER OF RS.5.04 CRORES. DURING ASSESSMENT PROCEEDINGS, PURSUANT TO INFORMATION OBT AINED FROM SALES TAX DEPARTMENT, CERTAIN REPAIR & MAINTENANCE ITEMS PURCHASED BY ASSESSEE FROM FIVE SUPPLIERS WAS TREATED AS BOGUS A ND ADDED U/S 69C AS UNEXPLAINED EXPENDITURE AS THE ASSESSEE COULD NO T PRODUCE CONFIRMATION FROM ALLEGED BOGUS SUPPLIER, THIS LED TO INITIATION OF PENALTY U/S 271(1)(C) AND CONSEQUENTLY A NOTICE U/S 274 WAS ISSUED TO THE ASSESSEE WHICH FINALLY RESULTED INTO THE IMPOSITION OF IMPUGNED PENALTY VIDE AO PENALTY ORDER DATED 25/09/2013. THE SAME WA S CONTESTED WITHOUT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 04/08/2014 , AGAINST WHICH THE ASSESSEE IS IN APPEA L BEFORE US. ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 3 3. THE LD. COUNSEL FOR ASSESSEE, DR. K. SHIVRAM, WHILE DRAWING OUR ATTENTION TO THE DOCUMENT PLACED IN THE PAPER BOOK, ASSAILED PENALTY ORDER ON LEGAL GROUNDS AS WELL AS ON MERITS BY CONT ENDING THAT THE SHOW CAUSE NOTICE ISSUED U/S 274 WAS DEFECTIVE AS THE RE LEVANT CLAUSE AS APPLICABLE TO THE CASE OF THE ASSESSEE WAS NOT APPR OPRIATELY MARKED AND NO SPECIFIC CHARGE WAS MENTIONED THEREIN FOR WHICH THE PENALTY WAS BEING INITIATED BY THE LD. AO AND HENCE IT HAS RESU LTED INTO TAKING AWAY ASSESSEES VALUABLE RIGHT OF CONTESTING THE SAME AN D THEREFORE, THE PENALTY PROCEEDINGS STANDS VITIATED. RELIANCE WAS P LACED ON JUDICIAL PRONOUNCEMENTS RENDERED BY APEX COURT IN CIT VS. SSAS EMERALD MEADOWS [73 TAXMANN.COM 248] & JURISDICTIONAL HONBLE BOMBAY HIGH COURT IN CIT VS. SAMSON PERINCHERY [ITA NO. 1154 OF 2014 05/ 01/2017] & HONBLE KARNATAKA HIGH COURT IN CIT VS. MANJUNATHA COTTON & GINNING FACTORY [359 ITR 565] & MUMBAI TRIBUNAL IN WADHWA ESTATE & DEVELOPERS VS. ACIT [ITA N0. 2158/MUM/2016 DATED 24 /02/2017]. 4. ON MERITS, THE LD. AR CONTENDED THAT THE LD. AO HAS WRONGLY INVOKED SECTION 69C TO BOGUS PURCHASES AS THE TRANS ACTIONS WERE DULY RECORDED IN THE BOOKS OF ACCOUNT AND THE PAYMENTS W ERE MADE THROUGH BANKING CHANNELS FROM ACCOUNTS WHICH WERE DULY REFL ECTED IN THE BOOKS OF ACCOUNTS. FURTHER, THE ASSESSEE ACCEPTED THE QUA NTUM ADDITIONS AND DID NOT CONTEST THE SAME ANY FURTHER IN VIEW OF THE FACT THAT IT COULD NOT OBTAIN CONFIRMATORY LETTERS FROM THE ALLEGED SUPPLI ERS AS THEY COULD NOT BE TRACED AT THE RELEVANT TIME. NEVERTHELESS, THE A SSESSEE WAS IN POSSESSION OF PURCHASE INVOICES, DELIVERY CHALLANS, LEDGER EXTRACTS THEREOF AND ALL THE PAYMENTS WERE THROUGH BANKING C HANNELS. THEREFORE, THE ASSESSEE VOLUNTARILY OFFERED THE QUANTUM ADDITI ONS BY FILING REVISED ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 4 COMPUTATION OF INCOME DURING QUANTUM PROCEEDINGS WH ICH WAS IN GOOD FAITH, TO BUY PEACE AND TO AVOID ANY FURTHER LITIGA TION. THE AO DULY ACCEPTED THE ADDITIONS OFFERED BY THE ASSESSEE WITH OUT MAKING ANY EFFORTS TO OBTAIN CONFIRMATION FROM THE ALLEGED SUP PLIERS. IN VIEW OF ALL THESE FACTORS, THE ASSESSEE STOOD GOOD CHANCE OF SU CCEEDING IN QUANTUM APPEAL, HOWEVER, IT REFRAINED FROM DOING SO ONLY TO BUY PEACE OF MIND AND AVOID FURTHER LITIGATION. RELIANCE WAS PLACED ON FOLLOWING JUDICIAL PRONOUNCEMENTS FOR VARIOUS CONTENTIONS:- I) CIT VS. RELIANCE PETRO PRODUCTS [2010 322 ITR 15 8 SUPREME COURT] II) CIT VS. LARSEN & TOUBRO LTD. [2014 366 ITR 50 2 BOMBAY HIGH COURT] III) CIT VS. SONAL CONSTRUCTION CO. [55 TAXMNN.COM 425 GUJARAT HIGH COURT] IV) M.G.CONTRACTORS PVT. LTD. VS. DCIT [ITA NOS.703 4 TO 7038/DEL/2014 19/09/2016 DELHI TRIBUNAL] V) ANITA BUILDERS VS. ACIT [2002 74 ITJ 364 JODHP UR TRIBUNAL] 5. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE PLACED RELIANCE ON SECTION 292B TO CONTEND THAT MERE DEFECT IN THE NOT ICE DO NOT VITIATES THE PENALTY PROCEEDINGS AND NO PREJUDICE WAS CAUSED TO THE ASSESSEE BY NON- MARKING OF APPROPRIATE CLAUSE. THE ASSESSEE VE RY WELL KNEW THE GROUNDS FOR WHICH HE WAS BEING PENALIZED AND THE LD . AO WITH DUE APPLICATION OF MIND INITIATED PENALTY PROCEEDINGS I N QUANTUM ASSESSMENT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND FINALLY LEVIED THE PENALTY ON THE SAME GROUND. MOREOVER, THE ASSESSEE ACTIVELY CONTESTED THE PENALTY PROCEEDINGS BEFORE AO AND THEREFORE, TH E LEGAL GROUNDS, BEING ONLY HYPER-TECHNICAL IN NATURE, DO NOT CARRY MUCH WEIGHT. FURTHER, ON MERITS, THE LD. DR POINTED THAT THE ASSESSEES C ONDUCT PROVED THE POINT THAT THE PURCHASES IN DISPUTE WERE BOGUS AND THE ASSESSEE, ON BEING SCRUTINIZED BY THE REVENUE, ACCEPTED THE SAME AND REVISED THE ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 5 COMPUTATION OF INCOME DESPITE BEING HAVING THE POSS ESSION OF PURCHASE DOCUMENTS. THEREFORE, THE ASSESSEES CONTENTION THA T THE ADDITION WAS OFFERED VOLUNTARILY, TO BUY PEACE OF MIND AND TO AV OID VEXED LITIGATION HOLDS NO STRENGTH. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD INCLUDING CITED CASE LAWS. SO FA R AS THE LEGAL GROUNDS ARE CONCERNED, A PERUSAL OF QUANTUM ORDER REVEALS T HAT THE PENALTY WAS INITIATED FOR FURNISHING OF INACCURATE PARTICULARS AND FINALLY THE SAME WAS LEVIED ON THE SAME GROUND. WE FIND THAT THE ASSESSE E WAS ISSUED TWO SHOW CAUSE NOTICES- ONE IN THE STANDARD PRINTED FOR M U/S 274 DATED 04/03/2013 AS PLACED ON PAGE NO.-86 OF THE PAPER BOOK AND ANOTHER DATED 27/08/2013 BY WAY OF LETTER AS PLACED IN PAGE NO. 92 OF THE PAPER BOOK. WE FIND THAT IN THE FIRST NOTICE, THE RELEVANT CLAU SE HAS NOT BEEN TICKED OFF AND THE SECOND NOTICE IS SIMPLY A SHOW C AUSE NOTICE. HOWEVER, IN THE QUANTUM ORDER LD. AO, AFTER DUE DELIBERATION S, CLEARLY INITIATED THE PENALTY PROCEEDINGS FOR FURNISHING OF INACCURATE PARTICULARS WHICH SHOWS DUE APPLICATION OF MIND QUA PENALTY PROCEEDINGS. THE PENALTY WAS FINALLY LEVIED ON THE SAME GROUND AS WELL. THEREFORE, MERE MARKING OF RELEVANT CLAUSE, IN OUR OPINION, ON THE FACTS OF THE CASE, H AS NOT CAUSED ANY PREJUDICE TO THE ASSESSEE PARTICULARLY WHEN THE ASS ESSEE VOLUNTARILY OFFERED CERTAIN ADDITIONS IN THE QUANTUM PROCEEDING S WITH A SPECIFIC REQUEST TO AO FOR NOT INITIATING THE PENALTY AGAINS T THE SAME. THE ASSESSEE VERY WELL KNEW THE CHARGES / GROUNDS FOR W HICH HE WAS BEING PENALIZED AND HE ACTIVELY CONTESTED THE PENALTY BEF ORE THE LD. AO. AT THIS JUNCTURE, WE FIND THAT THE PROVISIONS OF SECTI ON 292B COMES TO THE RESCUE OF THE REVENUE WHICH CURES MINOR DEFECT IN T HE VARIOUS NOTICES ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 6 ISSUED PROVIDED SUCH NOTICE IN SUBSTANCE AND EFFECT WAS IN CONFORMITY WITH THE INTENT AND PURPOSE OF THE ACT. ON OVERALL FACTS AND CIRCUMSTANCES, WE FIND THAT SUCH CONDITION WAS FULF ILLED IN THE INSTANT CASE. WE FIND THAT THE REVENUES SPECIAL LEAVE PETI TION [SLP] DISMISSED BY THE APEX COURT IN CIT VS. SSAS EMERALD MEADOWS [SUPRA] CONFIRMED THE DECISION OF HONBLE HIGH COURT, WHICH IN TURN, RELIED UPON THE JUDGMENT RENDERED IN CIT VS. MANJUNATHA COTTON & GINNING FACTORY [359 ITR 565]. THE DECISION RENDERED BY HONBLE BOMBAY HIGH COURT IN CIT VS. SAMSON PERINCHERY [SUPRA] ALSO PLACED THE RELIANCE ON THIS JUDGMENT. AFTER PERUSING THE RATIO OF THE JUDGMENT RENDERED IN CIT VS. MANJUNATHA COTTON & GINNING FACTORY [SUPRA], WE FIND THAT THE ASSESSEES APPEAL WAS ALLOWED BY HONBLE HIGH COURT AFTER CONSIDERING THE MULTIPLE FACTORS AND NOT SOLELY ON THE BASIS OF DEFECT IN NOTICE U/S 274. THEREFORE, WE ARE OF THE OPINION THAT THE PENA LTY COULD NOT BE DELETED MERELY ON THE BASIS OF DEFECT POINTED BY TH E LD. AR IN THE NOTICE AND THEREFORE, THE LEGAL GROUNDS RAISED ARE REJECTE D. 7. ON MERITS, LD. AR HAS ASSAILED IMPOSITION OF PE NALTY ON VARIOUS GROUNDS AND PLACED RELIANCE ON VARIOUS JUDICIAL PRO NOUNCEMENTS WHICH WE HAVE DULY CONSIDERED. WE FIND THAT FIRST OF ALL SECTION 69C COULD NOT BE APPLIED TO THE FACTS OF THE CASE AS THE PAYMENTS WERE THROUGH BANKING CHANNELS WHICH WERE DULY REFLECTED IN THE B OOKS OF ACCOUNTS AND THEREFORE, THERE WAS NO UNEXPLAINED EXPENDITURE WITHIN THE MEANING OF SECTION 69C INCURRED BY THE ASSESSEE. FURTHER, WE F IND THAT THE ASSESSEE WAS IN POSSESSION OF PURCHASE INVOICES AND VARIOUS OTHER DOCUMENTARY EVIDENCES QUA THESE PURCHASES. A BARE PERUSAL OF THE PURCHASE INVOICES REVEALS THAT THE ASSESSEE HAS PUR CHASED ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 7 CONSUMABLES ETC. FROM THE ALLEGED BOGUS SUPPLIERS, WHICH ARE CONNECTED, AT LEAST TO SOME EXTENT, WITH THE BUSINE SS OF THE ASSESSEE. THE ASSESSEE, DURING QUANTUM PROCEEDINGS ITSELF FIL ED REVISED COMPUTATION OF INCOME AFTER DISALLOWING THE ALLEGED BOGUS PURCHASES BY CITING THE REASON THAT THE SUPPLIERS WERE NOT TRACE ABLE DURING ASSESSMENT PROCEEDINGS. NEVERTHELESS, THE ASSESSEE WAS IN POSSESSION OF VITAL EVIDENCES IN HIS POSSESSION TO PRIMA FACIE SUBSTANTIATE HIS PURCHASES TO SOME EXTENT PARTICULARLY WHEN THE PAYM ENTS WERE THOUGH BANKING CHANNELS. MERELY BECAUSE THE SUPPLIERS COUL D NOT BE TRACED AT THE GIVEN ADDRESS WOULD NOT AUTOMATICALLY LEAD TO A CONCLUSION THAT THERE WAS CONCEALMENT OF INCOME OR FURNISHING OF INACCURA TE PARTICULARS BY THE ASSESSEE. THE ASSESSEE MADE A CLAIM WHICH WAS BONA FIDE AND THE SAME WAS COUPLED WITH DOCUMENTARY EVIDENCES BUT THE SAME REMAINED INCONCLUSIVE FOR WANT OF CONFIRMATION FROM THE SUPP LIERS. THEREFORE, OVERALL FACTS OF THE CASE DO NOT JUSTIFY IMPOSITION OF PENALTY ON THE ASSESSEE AND THEREFORE, THE SAME DESERVES TO BE DEL ETED ON MERITS OF THE CASE. ALL THE CITED CASE LAWS SUPPORT THE VIEW TAKEN BY US IN THE MATTER. THEREFORE, BY DELETING THE IMPUGNED PENALTI ES, WE ALLOW ASSESSEES APPEAL. 8. IN NUTSHELL, THE ASSESSEES APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND MAY, 2017. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 02 .05.2017 SR.PS:- THIRUMALESH ITA NO.6617/M/2014 EARTHMOVING EQUIPMENT SERVICE CORPORATION ASSESSMENT YEAR-2010-11 8 / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. %. , . , / DR, ITAT, MUMBAI 6. /0 / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI