ACIT 27(1), MUMBAI vs. M/S ASHAPURA CONSTRUCTION CO., MUMBAI

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ITA 4869/MUM/2019Status: DisposedITAT Mumbai01 June 2021AY 2011-123 pages

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

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that a disallowance of a claim, especially a minuscule portion of total purchases, does not automatically warrant a penalty under section 271(1)(c). The CIT(A) was justified in deleting the penalty based on Supreme Court and Bombay High Court precedents.

What were the facts?

The Revenue appealed against the deletion of penalty levied under section 271(1)(c) by the CIT(A). The Assessing Officer had made an addition for bogus purchases amounting to Rs. 28,59,700/- out of total purchases of Rs. 11,59,26,335/-, citing inability to produce suppliers and delivery challans.

What were the issues?

Whether penalty under section 271(1)(c) can be levied solely on the basis of disallowance of purchases due to non-production of suppliers and delivery challans, without establishing ex-facie bogus claims.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, “A” Bench, Mumbai

For Respondent: Shri Azhar Zain
Hearing: 07.04.2021Pronounced: 01.06.2021

O R D E R Per Shamim Yahya (AM) :- This is an appeal by the Revenue against the order of learned CIT(A) dated 18.4.2019 and pertains to assessment year 2011-12.

2.

The issue raised is that learned CIT(A) erred in deleting the penalty levied under section 271(1)(c) of the I.T.Act amounting to Rs.8,83,647/-.

3.

Brief facts of the case are that assessee in this case is a builder. Assessee had made a total purchase of rupees 11,59,26,335/-. Assessing officer received information that assessee has engaged in bogus purchases amounting to rupees 28,59,700/- from four parties. Assessing officer proceeded to make the impugned addition on the ground that assessee was not in a position to produce the alleged suppliers and the delivery challan were not produced. Penalty under section 271(1)(c) of the Act was also levied on this.

2 M/s. Ashapura Construction Co.

4.

Upon assessee's appeal learned CIT(A) referred to the decision of honourable Supreme Court the case of reliance Petro Products Pvt. Ltd. (322 ITR 158). Accordingly, he held that a disallowance of the assessee's claim cannot lead to levy of penalty under section 271(1)(c) of the Act.

5.

Against this order revenue is in appeal before us. We have heard the learned departmental representative. None appeared on behalf of the assessee.

6.

Upon careful consideration we note that assessee has made a huge amount of total purchases. Out of the same a minuscule amount has been disallowed as bogus purchases on the reasoning that assessee has not been able to produce the alleged suppliers and the concerned delivery challan is not produced. In our considered opinion the aforesaid purchase is a very minuscule of the total purchases made by the assessee. The disallowance of bogus purchase on the information of sales tax Department without any doubt or disturbance in any of the other aspects of the working of the assessee is not sustainable. On many occasions on search reasoning the entire addition has been deleted on the touchstone of honourable Bombay High Court decision in the case of Nikunj Eximp Enterprise Pvt. Ltd. (372 ITR 619). Furthermore learned CIT(A) has rightly relied upon the decision of honourable Supreme Court in the case of reliance Petro products. The aforesaid decision expounded that the disallowance of the claim of the assessee does not ipso facto lead to the conclusion that assessee should be visited with the regours of penalty if the claim made is not found to be ex-facie bogus. In our considered opinion, the claim of the assessee is not at ex facie bogus. Hence we find no infirmity in the order of learned CIT(A) in deleting the penalty.

7.

We further note that the tax effect in this case is less than limit fixed by the CBDT for filing appeals before the ITAT. The reasoning of the Revenue is that addition has been made on the basis of sales tax Department information. So the penalty levied also falls under the exception carved out of the CBDT circular on the reasoning that this is based upon outside agency information.

3 M/s. Ashapura Construction Co.

We do not accept the submission of the revenue. We find that once the revenue contends that this penalty is based upon the information from an outside agency revenues ground of levy of penalty will have no legs to stand. Accordingly in the background of aforesaid discussion we dismiss the ground raised by the Revenue.

8.

In the result this appeal by the revenue is dismissed.

Pronounced in the open court on 1.6.2021.

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