ACIT 15(2), MUMBAI V. SKYWAY CONSTRUCITON CO.), MUMBAI

ITA 7735/MUM/2010

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3444 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 06-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 10-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRADIP N KAPASI
• Keywords: Bogus purchase; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.7735/M/2010 ASSESSMENT YEAR: 2007-08 ASSISTANT COMMISSIONER OF INCOME-TAX 15(2), MATRU MANDIR, ROOM NO.113, TARDEO, MUMBAI - 400008 VS. M/S. SKYWAY CONSTRUCTION CO., 403, MATHARU HOUSE, SUBHASH ROAD, NEAR GARWARE HOUSE, VILE PARLE (E), MUMBAI 400 057 PAN: AAAFS 1200N (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI PRADIP N. KAPASI, A.R. REVENUE BY : MS. SURABHI SHARMA, D.R. DATE OF HEARING : 06.10.2015 DATE OF PRONOUNCEMENT : 22.01.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 17.08.2010 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] AGITATING THE ACTION OF THE LD. CIT(A) IN DELETING THE PENALTY OF RS.47,96,920/- LEVIED BY THE ASSESSING O FFICER (HEREINAFTER REFERRED TO AS THE AO) UNDER SECTION 271(1)(C) OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY AC TION UNDER SECTION 133 WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE. DURING THE COURSE OF SURVEY, IT WAS OBSERVED THAT THE ASSESSEE HAD MADE BOGUS PURCHASES . DURING THE SURVEY, THE STATEMENT OF PARTNER OF THE ASSESSEE FIRM NAMELY SH RI NIRMALKUMAR MADHANI WAS RECORDED WHEREIN HE REFUTED THE ALLEGATION THAT THE FIRM HAD BOOKED BOGUS PURCHASES. AGAIN THE STATEMENT OF SHRI NIRMALKUMAR MADHANI WAS RECORDED ON 24.12.07 WHEREIN HE WAS AGAIN ASKED TO OWN UP TH E BOGUS PURCHASES BUT HE AGAIN REFUSED TO ACCEPT. THEREAFTER, THE ASSESSEE FILED RETURN WHEREIN THE ASSESSEE DECLARED RS.1,42,51,098/- AS ADDITIONAL IN COME AND PAID THE TAXES ITA NO.7735/M/2010 M/S. SKYWAY CONSTRUCTION CO. 2 ACCORDINGLY. THE AO TOOK IT AS A CONCEALMENT OF IN COME AND LEVIED THE IMPUGNED PENALTY. 3. BEFORE THE LD. CIT(A), THE ASSESSEE EXPLAINED TH AT NEITHER ANY INCRIMINATING MATERIAL WAS FOUND NOR THE ASSESSEE E VER ADMITTED ABOUT THE ALLEGATION OF BOGUS PURCHASES. HOWEVER, SINCE THE ASSESSEE WAS UNDER CONSTANT PRESSURE FROM THE AO, HENCE THE ASSESSEE TO BUY THE PEACE OF MIND FILED REVISED RETURN OF INCOME WHEREIN THE ASSESSEE DECLA RED THE ADDITIONAL INCOME. NEITHER THE ASSESSEE HAD FURNISHED ANY INACCURATE P ARTICULARS OF INCOME NOR HAD CONCEALED THE INCOME IN ANY WAY AND EVEN NO CON CEALED INCOME WAS FOUND DURING THE SEARCH ACTION. THE LD. CIT(A), CO NSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT IN THIS CASE AFTER F ILING OF ORIGINAL RETURN OF INCOME WITHIN THE STIPULATED TIME ON 27.10.07 THE A SSESSEE HAD REVISED ITS RETURN OF INCOME WITHIN 2 MONTHS VOLUNTARILY WHICH WAS FILED ON 18.12.07. IN HIS STATEMENT, DURING THE SURVEY ACTION, THE PARTNE R OF THE ASSESSEE FIRM HAD NEVER ADMITTED ABOUT THE BOGUS PURCHASES. THE AO H AD NOT CARRIED OUT ANY INDEPENDENT INVESTIGATION TO FIND OUT THAT THE ASSE SSEE HAD MADE ANY BOGUS PURCHASES. NO CONCEALED INCOME WAS FOUND NEITHER D URING THE SURVEY NOR DURING THE ASSESSMENT PROCEEDINGS. THE INCOME OFFE RED BY THE ASSESSEE IN THE REVISED RETURN WAS VOLUNTARY AND AS SUCH IT IS NOT THE CASE OF CONCEALMENT OF INCOME. THE LD. CIT(A), RELYING UPON THE VARIOUS C ASE LAWS IN THIS RESPECT, HAS DELETED THE PENALTY LEVIED BY THE AO. 4. WE DO NOT FIND ANY INFIRMITY IN THE WELL REASONE D ORDER OF THE LD. CIT(A) AND THE SAME IS UPHELD. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS HERE BY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.01.2016. SD/- SD/- (N.K. BILLAIYA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 22.01.2016. * KISHORE, SR. P.S. ITA NO.7735/M/2010 M/S. SKYWAY CONSTRUCTION CO. 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.