M/S. A.B.EXPORTS, MUMBAI V. ITO WD 19(1) (1) , MUMBAI

MA 119/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2608 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-07-2022
• Assessment Year: misc
• Appeal Filed On: 22-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 271(1)(c)

Judgement Text

MA No 119/Mum/2022 In MA No.1636/Mum/2021 Assessment year: 2010-11 Page 1 of 2 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'A' BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Amit Shukla (Judicial Member)] MA No 119/Mum/2022 In ITA No.1636/Mum/2021 Assessment year: 2010-11 M/s. A.B. Exports .......................... Appellant A/4, 2 nd Floor, Chitrakut Building, Malabar Hill Mumbai-400006. [PAN: AALFA8367R] Vs. Income Tax Officer, Ward 19(1)(1) Mumbai. .......................Respondent Appearances: Mrugakshi Joshi, for the appellant Chetan Kacha for the respondent Date of concluding the hearing : 15.07.2022 Date of pronouncement the order : 30.09.2022 O R D E R Per Pramod Kumar, VP: 1. By way of this miscellaneous application the assessee applicant points out mistake apparent from record in our order dated 28.04.2022 inasmuch as there is a contradiction in paragraph 3, 4 & 5 apparently due to the typographical errors. 2. Learned representative fairly agree that the corrected paragraph 3, 4 & 5 rectifying the error must stand substituted as follows:- 3. We find that a co-ordinate bench of this tribunal, in the vase of Ajay Loknath Lohia in ITA no. 2998/Mum/2017 order dated 05.10.2018, has in similar facts and circumstances inter alia, observed as follows:- 'Having heard both sides, we find merit in the arguments of the assessee for the reason that although the AO has estimated 25% gross profit on alleged bogus purchases, never made any MA No 119/Mum/2022 In MA No.1636/Mum/2021 Assessment year: 2010-11 Page 2 of 2 observations with regard to the incorrectness in details filed by the assessee to prove such purchases. The AO never disbelieved information filed by the assessee, but the proceeded on the basis of information received from sales-tax department to make additions. The AO has made such addition on ad hoc basis by estimating gross profit on alleged bogus purchases. From these facts, it is very clear that the AO failed to make a case of deliberate attempt by the assessee to furnish inaccurate particulars of income. Therefore, we are of the considered view that mere ITA 2998/Mum/2017 disallowance of purchases on ad hoc basis does not tantamount to wilful furnishing inaccurate particulars of income within the meaning of section 271(1)(c) of the Income Tax Act, 1961. Hence, we are of the considered view that the AO was erred in levying penalty u/s. 271(1)(c) of the Act. Accordingly we direct the AO to delete penalty levied u/s. 271(1)(c) of the Act.' 4. We see no reasons to take any other view of the matter than the view so taken by the co- ordinate bench - which has also been reproduced by the learned CIT(A) in the impugned order. Respectfully following the same, we reverse, the conclusions arrived at by the learned CIT(A) and delete the impugned penalty. 5. In the result, this appeal is allowed. 3. In the result, miscellaneous application is allowed. Pronounced in the open court today on the 30 th September, 2022. Sd/- Sd/- Amit Shukla Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 30 th day of September 2022. Copies to: (1) The Appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar/Sr. PS Income Tax Appellate Tribunal Mumbai benches, Mumbai