ITO WARD 3(3), THANE vs. M/S SIMMY ELECTROMECH, THANE

ORDER PER N.K. PRADHAN, A.M. The appeal by the Revenue is directed against the order of the Commissioner of Income Tax (Appeals)-2 [in short ‘CIT(A)], Mumbai and arises out of the penalty order passed by the Assessing Officer (AO) u/s 271(1)(c) of the Income Tax Act 1961, (the ‘Act’). Though the case was fixed for hearing on 21.01.2020, neither the assessee nor its authorized representative appeared before the Tribunal on the above date. As there is non-compliance by the assessee, we are proceeding to dispose off this appeal after perusing the materials available on record and hearing the Ld. Departmental Representative (DR).

M/s. Simmy Electromech 2

1. On facts and circumstances of the case and in law, the learned CIT(A) erred in deleting the penalty by not appreciating the fact that the assessee failed to prove the genuineness of the said purchases from the 3 Hawala parties during the course of assessment as well as penalty proceedings.

2. On facts and circumstances of the case and in law, the learned CIT(A) erred in deleting the penalty by not appreciating the fact that there was clear intention on the part of the assessee to reduce the taxable income by claiming purchases from these non genuine parties. 3. The order of the CIT(A) may be vacated and that of the Assessing Officer may be restored.

3. Briefly stated, the facts of the case are that the assessee filed its return of income for the assessment year (AY) 2010-11 on 30.06.2010 declaring total income at Rs.2,16,600/-. On receipt of information from the Sales Tax Department, Government of Maharashtra that the assessee had obtained bogus purchase bills by accommodation entries from 3 entry providers, the Assessing Officer (AO) made a disallowance of the profit embedded in such purchases amounting to Rs.5,10,739/- by making an estimate @ 20%. Thus he made a disallowance of Rs.1,02,148/-. Thereafter, he levied a minimum penalty of Rs.31,570/- u/s 271(1)(c).

4. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). We find that vide order dated 14.11.2018, the Ld. CIT(A), by following the decision in Sir Shadilal Sugar Mills (168 ITR 7051)(SC), CIT v. Manjunatha Cotton & Ginning Factory (2013 35 taxamnn.com 250) (Karn.), Dilip N. Shroff v. Jt. CIT (2007) 291 ITR 519 (SC), CIT v. Reliance Petro Products (P) Ltd. (2010) 322 ITR 158 (SC), deleted the penalty of Rs.31,570/- on the M/s. Simmy Electromech 3 ground that “the levy of penalty is merely on disallowance of purchases and not finding of concealment of any particular or mala fide intention to reduce taxable income. Addition made on account of disallowance of purchases as bogus automatically cannot justify the penalty levied u/s 271(1)(c) of the Act.”

5. Before us, the Ld. DR submits that the estimation @ 20% has been made by the AO not on normal purchases, but on bogus purchases and therefore, the penalty of Rs.31,570/- be affirmed.