KONEL CORPORATION PRIVATE LIMITED,MUMBAI vs. INCOME TAX OFFICER 12(3)(2), MUMBAI

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ITA 488/MUM/2018Status: DisposedITAT Mumbai03 June 2019AY 2009-103 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 penalty under Section 271(1)(c) cannot be levied when the disallowance is on an estimated basis, purchase vouchers and banking payments are in order, and sales are not doubted. The assessee's conduct was not found to be contumacious.

What were the facts?

The Assessing Officer disallowed 25% of purchases as bogus due to non-production of suppliers, despite purchase vouchers and banking channel payments. The assessee's sales were not doubted and gross profit was above 12.5%.

What were the issues?

Whether penalty under Section 271(1)(c) is leviable when purchases are disallowed on an estimated basis due to non-production of suppliers, despite supporting documentation and healthy gross profit.

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(1)Show list

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Income Tax Appellate Tribunal, “H” Bench, Mumbai

Before: Shri Shamim Yahya (AM) & Shri Amarjit Singh (JM)

For Appellant: Shri Manikandan K
For Respondent: Shri M.K. Singh
Hearing: 28.3.2019Pronounced: 3.6.2019

Heard together (3 matters)

I.T.A. No. 488/Mum/2018
I.T.A. No. 489/Mum/2018
I.T.A. No. 490/Mum/2018

Read from the judgment's own cause title. This page is filed under one of them.

O R D E R Per Bench : These are appeals by the assessee against order’s of learned CIT-A wherein following penalty levied under 271(1)(c) of the Act has been confirmed as under:- assessment year amount of penalty 2009-10 78,467 2010-11 223,022 2011-12 83,210

2.

Brief facts of the case leading to the levy of penalty are that the assessing officer in these cases made disallowance of 25% on account of bogus purchases. Assessee has supplied the purchase vouchers and the payment where shown to have been made by banking channel. However drawing adverse inference for the nonproduction of the suppliers the assessing officer disallowed 25% of the bogus purchases. However the assessing officer did not doubt the sales. The assessing officer also noted that assessee has shown

2 Konel Corporation Pvt. Ltd. gross profit above 12.5%. The learned CIT-A confirmed the addition. Penalty under section 271(1)(c) was also levied.

3.

Against this order assessee is in appeal before us.

4.

We have heard both the counsel and perused the records. As clear from the facts recorded above, the disallowance has been made on an estimated basis on account of the nonproduction of suppliers before the assessing officer. The purchase vouchers were duly produced and the payments were through banking channel. The sales are not doubted and the gross profit shown by the assessee was over 12.5%. In these backgrounds in our considered opinion assessee cannot be visited with the rigours of penalty under section 271(1)(c). As a matter of fact on many occasions on similar circumstances in quantum proceedings the disallowance itself has been deleted. In our considered opinion on the facts and circumstances of the case assessee cannot be said to have been guilty of concealment or furnishing of inaccurate particulars of income. In this regard we draw support from the decision of a larger bench of the honourable Supreme Court in the case of Hindustan Steel Vs. State of Orissa (83 ITR 26) where in it was held that the authority may no t levy the penalty if the conduct of the assessee is not found to be contumacious.

5.

In the background of aforesaid discussion and precedent we set aside the order’s of authorities below and delete the levy of penalty.

6.

In the result assessee’s appeal is allowed.

Order has been pronounced in the Court on 3.6.2019.

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