M/S. STROMAG ENGINEERS LTD,MUMBAI vs. THE DCIT - 11(2)(2),MUMBAI, MUMBAI

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ITA 1254/MUM/2020Status: DisposedITAT Mumbai13 September 2021AY 2009-104 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that since the addition for bogus purchases was made on an estimated basis and the assessee's declared gross profit was higher than the estimated profit element, no penalty under Section 271(1)(c) was leviable. Therefore, the penalty was directed to be deleted.

What were the facts?

The assessee's return of income was assessed with an addition for bogus purchases. The addition was initially 100% of purchases, then reduced by the CIT(A) to a profit element of 12%, and finally restricted by the Tribunal to 12.5% of bogus purchases less gross profit declared. Penalty was levied under Section 271(1)(c) based on this sustained addition.

What were the issues?

Whether penalty under Section 271(1)(c) can be levied on an addition made on an estimated basis for bogus purchases, especially when the assessee's declared gross profit exceeds the estimated profit.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, ‘E‘ BENCH

Before: SHRI M.BALAGANESH & SHRI AMARJIT SINGH&

For Appellant: Shri K. Gopal
For Respondent: Ms. Amrita Singh
Hearing: 30/08/2021Pronounced: 13/09/2021

आदेश / O R D E R PER M. BALAGANESH (A.M):

1.

These appeals in 1258/Mum/2020 for A.Yrs.2009-10 & 2011-12 arise out of the order by the ld. Commissioner of Income Tax (Appeals)-18, Mumbai in appeal No.CIT(A)-18/IT- 10102/DCIT-11(2)(2)/18-19 dated 14/01/2020 (ld. CIT(A) in short) in the 1258/Mum/2020 M/s. Stromag Engineers Ltd., matter of imposition of penalty u/s.271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as Act).

Identical issues are involved in both the appeals and hence they are taken up together and disposed of by this common order for the sake of convenience.

2.

The only identical issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in confirming the levy of penalty u/s.271(1)(c) of the Act in respect of estimated addition made on account of bogus purchases.

3.

We have heard the rival submissions and perused the materials available on record. With the consent of both the parties, the appeal for the A.Y.2009-10 is taken as the lead case and the decision rendered thereon would apply with equal force for A.Y.2011-12 also except with variance in figures. The return of income for the A.Y.2009-10 was filed by the assessee company on 25/09/2009 declaring total income of Rs.4,32,63,690/-. The assessment was framed u/s.143(3) r.w.s. 147 of the Act on 23/02/2015 determining total income of Rs.5,38,92,820/- wherein disallowance on account of bogus purchases of Rs.1,06,29,126/- was made in respect of purchases made by the assessee from M/s. Harshil Ferromet Pvt. Ltd., M/s. Rajkamal Steel, M/s. Anand Impex and M/s. Jindutt Corporation. The ld. AO in the original assessment made disallowance of 100% on value of purchases made from aforesaid parties. The ld. CIT(A) determined the profit element embedded in the value of such purchases at 12% and thereafter directed to allow reduction of 4% towards VAT paid against such bogus purchases. On further appeal to the Tribunal, the Tribunal vide order dated 16/01/2019 restricted the 1258/Mum/2020 M/s. Stromag Engineers Ltd., disallowance to 12.5% of bogus purchases as reduced by gross profit already declared by the assessee on those transactions. This Tribunal order was accepted by both the parties i.e. by the assessee as well as by the Revenue by not preferring further appeal to the High Court. The ld. AO levied penalty u/s.271(1)(c) of the Act pursuant to this Tribunal order since some addition was indeed sustained by the Tribunal on an estimated basis. At the outset, we find that the addition towards bogus purchases has been made only on estimated basis. Hence, no penalty u/s.271(1)(c) on the same would survive in the eyes of law. Moreover, we find that for the A.Y.2009-10, the gross profit shown by the assessee on total transactions is 29.70% which is much more than 12.5% profit estimated by the Tribunal in the quantum proceedings. We find that the Tribunal has directed the ld. AO to adopt 12.5% less gross profit already declared by the assessee, then there would be no addition that could be effectively survive in the transaction. Hence, we hold that it is not a fit case for levy of concealment penalty u/s.271(1)(c) of the Act. Accordingly, the penalty is hereby directed to be deleted for the A.Y.2009- 10.

3.1. As far as the A.Y.2011-12 is concerned, we find that the GP rate already declared by the assessee is 28.3% which is also much more than the percentage directed by the Tribunal to be added. Hence, we hold that it is not a fit case for levy of concealment penalty u/s.271(1)(c) of the Act. Accordingly, the penalty is hereby directed to be deleted for A.Y.2011-12.

1258/Mum/2020 M/s. Stromag Engineers Ltd.,

4.

In the result, both the appeals of the assessee are allowed.

Order pronounced on 13/09/2021 by way of proper mentioning in the notice board.

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