MUKESH SALIGRAM SHARDA,MUMBAI vs. ITO WD 1(2) KALYAN , MUMBAI

The solitary ground of the assessee pertains to confirmation of penalty under section 271(1)(c) for furnishing of inaccurate particulars of income. The fact in brief are that initially the appeal of the assessee filed against confirmation of penalty levied under section 271(1c) of the Act was dismissed by the ITAT, H- Bench, Mumbai in ITAs No.1908 & 1907/Mum/2021 in an exparte order wherein assessee has not made compliance. Subsequently, the assessee filed miscellaneous application vide M.A.Nos.201/Mum/2022 & 202/Mum/2022 stating that no compliance could be made on the date of hearing of the case because of the expiry of one of the close relatives of the assessee. Thereafter, the miscellaneous application of the assessee was allowed vide order dated 27/12/2022 recalling the order under rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963.

The fact in brief are that during the course of assessment proceedings, the Assessing Officer had disallowed 100% of purchases made through three parties on the basis of the information received from the sales-tax department that those three parties were engaged in providing bills without supplying any good. However, the Ld.CIT(A) has estimated the quantum addition to the extent of 12.5% of purchases. Thereafter, the Assessing Officer has levied penalty of Rs.8,13,793/- under section 271(1)(c) of the Act for furnishing inaccurate particulars of income. The assessee filed appeal before the Ld.CIT(A) against levying penalty. However, the Ld.CIT(A) has dismissed the appeal the appeals of the assessee.

Heard both the sides and perused the materials on record. It is undisputed fact that impugned penalty was levied only on estimated addition. The Assessing Officer had made addition of entire bogus purchases, however, did not doubt the sales made against such purchases. We observe that the Tribunals in various decisions have held that where sales are not disputed, entire alleged bogus purchases cannot be disallowed and only the gross profit on the alleged purchases to be disallowed. After taking into consideration the various decisions of the Tribunal that no penalty under section 271(1)(c) is leviable on estimated additions and also after taking into consideration the decision of Hon’ble Rajasthan High Court in the case of CIT vs Krishi Tyre Retreading & Rubber Industries 360 ITR 580; the decision of Hon’ble Punjab & Haryana High Court in the case of CIT vs Sangrur Vanaspati Mills Ltd 303 ITR 53 (P&H); and the decision of Hon’ble Gujarat High Court in the case of CIT vs Subhsh Trading Co Ltd 221 ITR 110 (Guj), we direct the Assessing Officer to delete the impugned penalty levied on estimated addition. Therefore, the appeal of the assessee is allowed. 5. the facts and circumstances of the issue in this appeal are identical to the facts and circumstances of the decision arrived at against the appeal in ITA No.1907/Mum/2021 shall apply mutatis mutandis to this appeal also.

In this result, both the appeals filed by the assessee are allowed. Order pronounced in the open court on 22/02/2023.