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Income Tax Appellate Tribunal, MUMBAI BENCH “C” MUMBAI
Before: SHRI RAVISH SOOD & SHRI N.K. PRADHAN
ORDER
PER N.K. PRADHAN, AM
This is an appeal filed by the assessee. The relevant assessment year is 2008-09. The appeal is directed against the order of the Commissioner of Income Tax-44, Mumbai [in short ‘CIT(A)’] and arises out of the penalty order u/s 271(1)(c) of the Income Tax Act 1961, (the ‘Act’).
Briefly stated, the facts are that the assessee filed its return of income for the assessment year (AY) 2008-09 on 30.08.2009 declaring total income of Rs.1,50,70,627/-. The assessment was completed u/s 143(3) by the Assessing Officer (AO) on 29.12.2010 determining the total income at Rs.1,50,70,627/-. The assessee is a builder and developer. During the impugned assessment year, it was engaged in purchase and sale of plots.
Om Gurukripa Realtors During the course of assessment proceedings, the AO disallowed the alleged bogus purchases of Rs.2,33,45,386/- from the following parties : ‘ S. No. Name Amount (Rs.) 1. Pravesh Enterprises 15,27,305/- 2. Balaji Trading 22,19,296/- 3. Raj Traders 42,89,220/- 4. Jainam Trading Co. 42,20,730/- 5. Mahavir Enterprises 20,12,439/- 6. Pratik Sales Corporation 90,76,396/- Total 2,33,45,386/- The assessee preferred an appeal before the Ld. CIT(A) against the above order of the AO. It is found that the appeal was dismissed.
Thereafter, the AO levied a penalty of Rs.72,13,724/- u/s 271(1)(c) of the Act on the above concealed income of Rs.2,33,45,386/-.
Aggrieved by the penalty order, the assessee filed an appeal before the Ld. CIT(A). It is mentioned by the Ld. CIT(A) in his appellate order dated 27.10.2016 that there was non-compliance by the assessee to the notices issued by his office on different five dates. Considering the non- compliance by the assessee, the appeal was dismissed by the Ld. CIT(A), without considering the grounds of appeal on merits.
4. Before us, the Ld. counsel for the assessee submits that reasonable opportunity should have been given by the Ld. CIT(A) while disposing the appeal. Also it is stated by him that no proper satisfaction was ever recorded by the AO in the notice u/s 271(1)(c) r.w.s. 274 as well as the assessment order. Therefore, there is no specific charge mentioned, Om Gurukripa Realtors 271(1)(c) were initiated for concealment of income or for furnishing inaccurate particulars of income. Further it is stated by him that the penalty of Rs.72,13,724/- levied by the AO and thereafter confirmed by the Ld. CIT(A) is untenable in law as the assessed income and returned income for the impugned assessment year is same and there is no “tax sought to be evaded” as per Explanation 4 to section 271(1)(c) of the Act. Reliance is placed by him on the order of the Tribunal in Sutlej Coach Builders Ltd. v. ITO (ITA No. 345/Asr/2018 for AY 2010-11), M/s Orbit Enterprises v. ITO (ITA No. 1596 & 1597/Mum/2014 for AYs 2005-06 & 2006-07), M/s Oleander Farms P. Ltd. v. DCIT (ITA No. 5197/Mum/2014 for A Y 2004-05), DCIT v. Shri Dhaval D. Shah (ITA No. 1337/Mum/2016 for AY 2009-10), M/s Cenzar Industries Ltd. v. ITO (ITA No. 1970/Mum/2015 for AY 2006-07), M/s Hicons Developers v. ACIT (ITA No. 7434/Mum/2014 for AY 2006-07) and M/s Kapishek Films Pvt. Ltd. v. ITO (ITA No. 3979/Mum/2013 for AY 2003-04). Relying on the above decisions, the Ld. counsel submits that the penalty of Rs.72,13,724/- levied by the AO u/s 271(1)(c) be deleted.
5. On the other hand, the Ld. DR submits that as there is repeated non- compliance by the assessee to the notices issued by the CIT(A) on five occasions, the appellate order be confirmed. Reliance is placed by him on the decision in Sundaram Finance Ltd. v. ACIT (2018) 93 taxmann.com 250(Madras) and Sundaram Finance Ltd. v. DCIT (2018) 99 taxmann.com 152(SC). 6. We have heard the rival submissions and perused the relevant materials on record. As borne out from the order dated 27.10.2016 passed