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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & SHRI PAWAN SINGH, JM
O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order by the Commissioner of Income Tax (Appeals) dated 14.05.2013 and pertains to the assessment year 2010- 11.
The issue raised by the ld. Commissioner of Income Tax (Appeals) erred in confirming the levy of penalty amounting to Rs.25,11,000/-.
Brief facts of the case are that the concerns were floated and run by Shri Mukesh Choksi. After search and seizure action, the concern was held to be the (A.Y. 2010-11) M/s. Mihir Agencies Pvt. Ltd. vs. Dy. CIT accommodation entry provider. The Assessing Officer rejected the books of account and estimated the total income @ net commission of 2% of the total receipts shown in the bank account. The assessee contested the same and requested the same to be made at 0.15% in view of the ITAT decision in the assessee’s own case. However, the ld. Commissioner of Income Tax (Appeals) did not find the facts identical and confirmed the action of the Assessing Officer. On this account, penalty action was initiated and penalty was levied. The ld. Commissioner of Income Tax (Appeals) has confirmed the levy of penalty.
Against this order, the assessee is in appeal before the ITAT.
The ld. Counsel of the assessee contended that in identical situation in assessee’s own case, the ITAT has determined income @ 0.15% of the net receipt.
Further, the ld. Counsel of the assessee submitted that in assessee’s own case as well as in assessee’s group cases, penalty similarly levied were deleted by the ITAT in the following cases:
M/s. Mihir Agencies Pvt. Ltd. vs. DCIT (in to 6441/Mum/2012 dated 06.01.2016) 2. M/s. Goldstar Finvest Pvt. Ltd. vs. DCIT (in ITA Nos.7564/Mum/2014, 7566-7570/Mum/2014) 3. M/s. Wavecom Builders Pvt. Ltd. & Anrs. (in ITA No.685/Mum/2015 & Ors.)
He submitted that the tribunal had referred to Hon’ble Calcutta High Court decision in the case of Durga Kamal Rice Mills vs. CIT [2004] 265 ITR 25 (Calcutta) for the following proposition:
(A.Y. 2010-11) M/s. Mihir Agencies Pvt. Ltd. vs. Dy. CIT When two views are possible and when no clear and definite inference can be drawn, in a penalty proceeding, penalty cannot be imposed…….. In quantum proceedings, a particular provision might be attracted to the income of the assessee. But when it came to the question of imposition of penalty, then independent of the finding arrived at the quantum proceedings, the authority has to find conclusively that the assessee owns the concealed amount.
Since facts are identical, and on similar facts ITAT has in assessee’s own case deleted the penalty and the Revenue has not submitted that the Hon'ble jurisdictional High Court has reversed the said decision, we follow the precedent and delete the levy of penalty.