ITO 28(1)(2), NAVI MUMBAI vs. BANDU HATWAR, NAVI MUMBAI

None has appeared for assessee and no valid adjournment application is on record. Left with no option, we proceed to dispose-off the same in terms of Rule 25 of the Income Tax (Appellate Tribunal) Rules, 1963 on the basis of material available on record and after hearing Ld. Departmental Representative, Shri Manoj Kumar Singh who has justified the stand of Ld. AO in imposing the impugned penalty.

Upon careful consideration, we find that the assessee being resident individual engaged as fruits dealer/ whole seller was assessed u/s 143(3) on 26/12/2011 after addition of alleged bogus purchases for Rs.298.99 Lacs and another addition u/s 44(a)(ia) for Rs.41.22 Lacs. Upon further appeal, the Ld. first appellate authority provided a relief of Rs.59.93 Lacs vide order dated 17/12/2012 which reduced the aggregate quantum addition to Rs. 280.28 Lacs against which the assessee was saddled with penalty of Rs.95.38 Lacs.

The assessee contested the penalty with success before Ld. CIT(A) vide impugned order dated 21/12/2016 wherein Ld. CIT(A) deleted the penalty by making following observations:- 6.5 In the instant case, the appellant filed return of income for the assessment year 2009-10 on 30.09.2009 declaring total income at Rs.6,91,443/-. The case was selected for scrutiny and order u/s.143(3) of the Act was passed on 26.12.2011 assessing total income at Rs.3,47,13,380/- by making additions of Rs.2,98,99,390/- on account of bogus purchases u/s 69C of the Act and addition u/s 40(a)(ia) of the Act amounting to Rs.41,22,540/-. The CIT(A) confirmed the addition on account of bogus purchases u/s 69C to the extent of Rs.2,80,28,291/- and deleted the addition made u/s 40(a)(ia) of the Act. The AO levied penalty of Rs.95,38,399/-. It is seen that the sole ground of appeal pertains to levy of penalty of Rs.95,38,399/- u/s 271(1)(c) of the Act on addition of Rs.2,80,28,300/- assessed by the Ld. AO under the head “Bogus Purchases” u/s 69C of the Act as the same was confirmed by the CIT(A). During appellate proceedings, the appellant AR has submitted a copy of order passed by the Hon’ble ITAT in dated 28.09.2016 wherein the ITAT has estimated the disallowance at Rs.20,00,000/- as against Rs.2,80,28,291/- confirmed by the CIT(A). Now the factual matrix has entirely changed in the light of the Hon’ble ITAT order. Moreover, during assessment proceedings appellant has submitted that all the transactions of purchase and sales are duly recorded in the regular books of account maintained. The purchases are supported by proper bills/vouchers. The payments were made through banking channels. Thus, the sale against the purchases is not doubted. 6.6 I have perused the impugned penalty order and oral submissions made by the appellant. On the basis of various case laws and facts of the case, I am of considered opinion that the appellant has shown all the purchases and AO has not questioned the Sales Transactions. Disallowance of purchase expenses will not per se amount to concealment of income or furnishing inaccurate particulars of income. Merely because appellant had claimed purchase expenditure, the claim of which was not accepted or was not acceptable to revenue, that by itself would not attract penalty under section 271(1)(c) of the Act. Moreover, the Hon’ble ITAT has estimated the disallowance at Rs.20,00,000/- as against Rs.2,80,28,291/- confirmed by the CIT(A). The issue is very debatable and controversial and plethoras of judgments are for and against the treatment of such expenses. Therefore, I hereby direct AO to delete the penalty levied amounting to Rs.95,38,399/-. The Ground of appeal

5. We have carefully considered the impugned order wherein we find that the penalty has been deleted by Ld. first appellate authority upon noticing that the quantum additions of Rs.280.28 Lacs has finally been estimated at Rs.20 Lacs by the Tribunal vide ITA No. 2056/Mum/2013. Nothing on record suggest that the aforesaid order of the Tribunal has subsequently been reversed by any higher authority. This being the case, the impugned penalty does not survive since the final addition of Rs.20 Lacs is on estimated basis only. Therefore, finding no infirmity in the impugned order, we dismiss the appeal.

The appeal stands dismissed. Order pronounced in the open court on 10th October, 2018.