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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Shri Balaji Landmark ITA No. 865/Ind/2016 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE Before Shri Kul Bharat, Hon’ble Judicial Member and Shri Manish Borad, Hon’ble Accountant Member
ITA No. 865/Ind/2016 A.Y. 2011-12 M/s Shree Balaji Landmark Hotel Private Limited Indore ::: Appellant Vs ACIT 3(1) Indore ::: Respondent Appellant by Shri Pankaj Shah Respondent by Shri K.G. Goyal Date of hearing 4.6.2018 Date of pronouncement 8.6.2018 O R D E R PER SHRI MANISH BORAD, AM
This appeal filed by the assessee pertaining to
Assessment Year 2011-12 is directed against the order of
ld. Commissioner of Income-tax (Appeals)-2, Indore dated
30.06.2016 which is arising out of the order u/s 143(3) of
the Income Tax Act dated 27.03.2014 framed by the JCIT,
Range 3, Indore.
Shri Balaji Landmark ITA No. 865/Ind/2016 2. Briefly stated, the facts, as culled out from
record, are that the assessee declared total income of
Rs.2,50,50,083/- and the return of income filed for the
assessment year 2011-12 on 30.9.201. The assessment
u/s 143(3) of the Act was completed after making few
additions totaling Rs. 3,55,150/- which, inter alia, included
addition towards bogus purchases of Rs. 2,55,150/- from a
concern M/s Omkar Enterprises, Mumbai. The Assessing
Officer investigated the issue of bogus purchases on the
basis of information received from DGIT (Inv.), Mumbai.
During the course of assessment proceedings the assessee
furnished details of purchases from the said party at
Rs.1,27,575/-. However, the Assessing Officer on the basis
of information made an addition for bogus purchases of Rs.
2,55,150/-. The assessee did not file any appeal against
these additions of Rs. 3,55,150/- before the learned
Commissioner of Income Tax (Appeals).
Shri Balaji Landmark ITA No. 865/Ind/2016 3. Subsequently, penalty proceedings were
initiated and the Assessing Officer imposed penalty of Rs. 2
lacs on the alleged addition of bogus purchases of Rs.
2,55,150/-.
Aggrieved, the assessee preferred appeal before
the learned Commissioner of Income Tax (Appeals) who
restricted the penalty to 150% as against 250% levied by
the Assessing Officer. Now the assessee is in appeal before
the Tribunal against confirmation of penalty @ 150% of the
alleged tax sought to be evaded.
The learned counsel for the assessee submitted
that the assessee has duly disclosed the purchases of
Rs.1,27,575/- made from Shri Omkar Enterprises but the
Assessing Officer has made an addition of the double
amount i.e. Rs. 2,55,150/- without giving any basis. He
also contended that no opportunity of cross-examination
was provided to the assessee. The learned counsel for the 3
Shri Balaji Landmark ITA No. 865/Ind/2016 assessee also submitted that mere non-filing of quantum
appeal does not lead to presumption of concealment or
furnishing of inaccurate particulars of income. Reliance
was further placed on the following decisions :-
(i) Babulal C. Borana vs. ITO (2006) 282 ITR 251 (Bom) (ii) ACIT vs. Kishan Lal Jewels Pvt. Ltd. (2012) 147 TTJ 308(Del) (Tri.) (iii) Kishinchand Chellaram vs. CIT; 125 ITR 713 (iv) Manjunath Cotton & Ginning Factory 395 ITR 565)
On the other hand, the learned DR vehemently
argued supporting the orders of the lower authorities.
We have heard both the parties and perused the
material available on record as also the judgments relied
upon by the learned counsel for the assessee.
The sole grievances relates to penalty imposed
on the alleged bogus purchases of Rs. 2,55,150/-. From
the perusal of record we find that the assessee declared 4
Shri Balaji Landmark ITA No. 865/Ind/2016 income of Rs. 2,50,50,083/- and is engaged in the
business of running hotels. The books of accounts are
audited and complete details including books of accounts,
cash book, ledger, vouchers were produced before the
learned Commissioner of Income Tax (Appeals). The books
of accounts have not been rejected. The Assessing Officer
on the basis of information from the office of DGIT(Inv.),
Mumbai, called for the reply from the assessee about the
purchases. The assessee duly furnished complete details of
purchases of Rs.1,27,575/- made from M/s Omkar
Enterprises which were duly recorded in the books and the
payment was duly made. The learned Assessing Officer
further made an inquiry from Sunil Gupta, proprietor of
M/s Omkar Enterprises who in his statement recorded on
oath stated that no such sales have been made to the
assessee. We are unable to understand that at one point of
time the revenue is alleging that the assessee has made
Shri Balaji Landmark ITA No. 865/Ind/2016 bogus purchases from M/s Omkar Enterprises and on the
other M/s Omkar Enterprises refused to have made any
sale to the assessee and thirdly the assessee has furnished
details of purchases of Rs. 1,27,575/- from the very same
party. There are three different versions of the same
transaction except the amount of purchase which the
Assessing Officer has taken at double the amount shown
by the assessee. This is also a fact that the assessee was
not provided an opportunity of cross examination which
has been requested by him during the course of penalty
proceedings. The Assessing Officer has also not provided
copy of report of DGIT, Mumbai, to the assessee nor the
copy of the statement was provided. We observe that in the
case of C. Vasantlal & Co.; 45 ITR 2006 the Supreme
Court has held that “it is open to the ITO to collect material
to facilitate assessment even by private enquiry but he if he
desires to use the material so collected, the assessee must
Shri Balaji Landmark ITA No. 865/Ind/2016 be informed of the material and must be given an adequate
opportunity of explaining it”. Similar view has been taken in
the case Kishanchand Chellaram (supra), New Kashmir &
Oriental Transport Co. (P) Ltd.; 92 ITR 334(All) and CIT vs.
Permanand; 107 TTJ 395 (Jd)(Tri). We, therefore,
respectfully following the judgment of the Hon'ble Supreme
Court as well as in the facts and circumstances of the case
wherein the assessee has duly furnished details of
purchases made in its books of accounts, the books of
accounts have not been rejected, the assessee has not been
provided opportunity of cross examination of the alleged
seller M/s Omkar Enterprises, are of the view that both
the lower authorities were not justified in confirming the
penalty u/s 271(1)(c) of the Act on the alleged bogus
purchases. We accordingly delete the penalty imposed on
the alleged bogus purchases of Rs. 2,55,150/- and allow
the appeal of the assessee.
Shri Balaji Landmark ITA No. 865/Ind/2016 9. In the result, the appeal of the assessee is allowed.
Order pronounced in open Court on 8th June, 2018.
Sd/- sd/-
(KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER
June 8, 2018
Copy to : Appellant/Respondent/CIT/CIT(A)/DR Dn/-