ACIT-9(2)(2), MUMBAI V. CONDOT SYSTEMS PVT. LTD., , MUMBAI

ITA 824/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1791 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 14-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bogus purchase; Rejection of books of accounts
• Section: 271(1)(c); 143(3); 142(1); 133(6); 250; 143(2); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 824/MUM/2019 ( ASSESSMENT YEARS: 2010-11 ) ACIT-9(2)(2) ROOM NO. 203, AAYAKAR BHAVAN, MK. ROAD, MUMBAI. / VS. CONDOT SYSTEMS PVT. LTD, G-1, MUKUND NAGAR, MAROL PIPE LINE, ANDERI EAST, MUMBAI 400053. ./ ./ PAN/GIR NO. : AABCC1766B ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MS. SHREEKALA PARDESHI, DR / RESPONDENT BY : NONE / DATE OF HEARING 09/11/2020 !'# / DATE OF PRONOUNCEMENT 17/11/2020 / O R D E R PER PAVAN KUMAR GADALE - JM: THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-16 MUMBAI PASSED U/SEC 271 (1)(C) AND 250 OF THE ACT. THE SOLE GROUND OF APPEAL RAISED BY THE REVENUE THA T THE LD CIT(A) HAS ERRED IN LAW DELETING THE PENALT Y LEVIED U/SEC 271 (1)(C) OF THE ACT BY THE ASSESSING OFFICER. ITA NO .824 /MUM/2019 CONDOT SYSTEMS, MUMBAI. - 2 - 2. THE BRIEF FACTS OF THE CASE ARE, THE ASSESSEE COMPANY IS ENGAGED IN MANUFACTURING OF CONTACT CODER AND INK JET PRINTERS AND FILED THE RETURN OF INCOME FOR THE A.Y 2010-11 ON 06.09.2010 DISCLOSING TOTAL INCOME OF RS. 78, 99,770/-.SUBSEQUENTLY, NOTI CE U/S 148 OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER, AS THE ASSESSEE WAS INVOLVED IN OBTAINING THE BOGUS PURCHASE BILLS FROM OPERATORS AS PER THE INFORMATION RECEIVED FROM MAHARASHTRA SALES TAX DEPARTMENT. FURTHER, THE A.O HAS ISSUED NOTICE U/S 143(2) AND 142(1) OF THE ACT. IN RESPONSE TO THE NO TICE THE LDAR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED THE DETAILS. IN THE ASSESSMENT PROCEEDING S TO CONDUCT ENQUIRES, THE AO HAS CALLED FOR THE INFORMATION U/S 133(6) OF THE ACT ON THE PARTIES TO VERIFY THE PURCHASE TRANSACTIONS. THE A.O WAS NOT SATISFIED WITH THE INFORMATION SUBMITTED IN RESPECT OF THE TRANSACTIONS REFERRED AT PARA 8 OF THE ASSESSME NT ORDER AND REJECTED THE BOOKS OF ACCOUNTS U/SEC145(3 ) OF THE ACT. THE A.O. RELIED ON THE JUDICIAL DECISIO NS AND ESTIMATED THE INCOME @ 12.5% OF THE UNVERIFIABL E PURCHASES AND ASSESSED THE TOTAL INCOME OF RS. 1,02,64,900/- AND PASSED THE ORDER U/S 143(3) R.W.S ITA NO .824 /MUM/2019 CONDOT SYSTEMS, MUMBAI. - 3 - 147 OF THE ACT DATED 17.03.2016. SUBSEQUENTLY, THE A.O INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND CALLED FOR EXPLANATIONS. THE ASSESSEE HAS F ILED THE DETAILS AND EXPLAINED THAT THE ASSESSEE HAS ACCEPTED THE ADDITION OF 12.5% OF ESTIMATED INCOME OF BOGUS PURCHASES BILLS. BUT THE AO HAS OVERLOOKED TH E FACTS AND IS OF THE OPINION THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME AND LEVIED THE PENALTY OF RS. 7,30,832/- AND PASSED THE ORDER U/S 271(1)(C) DATED 27.09.2016. 3. AGGRIEVED BY THE PENALTY ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). WHEREAS, THE CIT( A) CONSIDERED THE GROUNDS OF APPEAL AND THE SUBMISSIONS OF THE ASSESSEE, THAT THE ADDITION MADE IN RESPECT OF ALLEGED BOGUS PURCHASES WERE ACCEPTED BY THE ASSESSEE TO BUY PEACE WITH THE REVENUE. FURTHER THE LD. CIT(A) CONSIDERED THE FACTUAL ASPE CTS AND THE DECISIONS OF THE COORDINATE BENCH OF THE HONBLE TRIBUNAL REFERRED AT PARA 4.1.1 TO 4.1.8 O F THE ORDER AND HELD THAT THE PENALTY LEVIED UNDER 271(1) (C) OF THE ACT IS NOT JUSTIFIED AND DIRECTED THE ASSES SING TO DELETE THE PENALTY AND ALLOWED THE APPEAL. ITA NO .824 /MUM/2019 CONDOT SYSTEMS, MUMBAI. - 4 - AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENUE H AS FILED AN APPEAL WITH THE TRIBUNAL. 4. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE. THE LD. DR SUBMITTED THAT THE LDCIT( A) HAS ERRED IN DELETING THE PENALTY, IGNORING THE FAC TS THAT THE ASSESSEE HAS VENTURED INTO TRANSACTIONS OF BOGUS PURCHASES AND HAS CONCEALED THE INCOME. 5. WE HEARD THE LD. DR AND PERUSED THE MATERIAL ON RECORD. WE FIND THE SOLE CRUX OF THE DISPUTED ISSU E THAT, THE REVENUE IS AGGRIEVED WITH THE ORDER OF THE CIT(A),WHO HAS DELETED THE PENALTY IRRESPECTIVE OF THE TRANSACTIONS OF THE ASSESSEE IN OBTAINING THE BOGUS BILLS FROM THE OPERATORS AS DISCLOSED, IN THE WEB S ITE OF MAHARASHTRA SALES TAX DEPARTMENT. WE FIND THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS HAS SUBMITTED THE DETAILS AND THE AO HAS CALLED FOR THE INFORMATION U/S 133(6) OF THE ACT FROM THE PARTIES TO VERIFY THE PURCHASE TRANSACTIONS. THE A.O CONSIDERE D THE FACTS AND THE DOCUMENTS SUBMITTED IN THE ASSESSMENT PROCEEDINGS AND FINALLY REJECTED THE BOO KS OF ACCOUNTS U/SEC145(3) OF THE ACT AND ESTIMATED TH E INCOME @ 12.5% OF THE BOGUS PURCHASES AND PASSED ITA NO .824 /MUM/2019 CONDOT SYSTEMS, MUMBAI. - 5 - THE ASSESSMENT ORDER. SUBSEQUENTLY, PENALTY WAS LEVIED U/S 271(1)(C) OF THE ACT BY THE A.O. THE ASSESSEE HAS PREFERRED AN APPEAL AGAINST PENALTY ORDER WITH THE CIT(A). IN THE COURSE OF THE APPELLA TE PROCEEDINGS BEFORE THE CIT(A),IT WAS SUBMITTED THAT THE ASSESSEE HAS NOT CONTESTED THE QUANTUM ADDITION BEING ESTIMATION OF INCOME @12.5% OF UNVERIFIABLE PURCHASES TO BUY PEACE WITH THE INCOME TAX DEPARTMENT AND HAS ACCEPTED THE ADDITION AND THE PENALTY CANNOT BE LEVIED, WHEN INCOME IS ESTIMATE D BY THE ASSESSING OFFICER. WE ARE OF THE OPINION THA T, WHEN THE ADDITION IS SUSTAINED ON ESTIMATION/ ADHOC BASIS, NO PENALTY U/S 271(1)(C) OF THE ACT CAN BE LEVIED. WE FIND THAT THE LDCIT(A) RELIED ON THE COORDINATE BENCH OF HONBLE TRIBUNAL DECISIONS AN D PASSED A REASONED ORDER IN DIRECTING THE ASSESSING OFFICER TO DELETE THE PENALTY. ACCORDINGLY, WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF THE LD CIT( A) AND UPHELD THE SAME AND DISMISSED THE GROUNDS OF APPEAL OF THE REVENUE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ITA NO .824 /MUM/2019 CONDOT SYSTEMS, MUMBAI. - 6 - ORDER PRONOUNCED IN THE OPEN COURT ON 17.11.2020 SD/- SD/- (PRAMOD KUMAR) (PAVAN KUMA R GADALE ) VICE PRESIDENT JUDICIAL MEMBER MUMBAI, DATED 17/11/2020 KRK, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / THE CIT(A) 4. ) ( ) / CONCERNED CIT 5. ,-. //'( , '(# , & / DR, ITAT, MUMBAI 6. .34 5 / GUARD FILE. / BY ORDER, , / //TRUE COPY// 1. / ( ASST. REGISTRAR) !' #, / ITAT, MUMBAI