MUKUL HOLDING & TRADING CO. P.LTD,MUMBAI vs. DCIT CEN CIR 33, MUMBAI

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ITA 4012/MUM/2013Status: DisposedITAT Mumbai25 April 2017AY 2002-036 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 the Assessing Officer had not properly established whether the assessee was guilty of concealment of income or furnishing inaccurate particulars. The reasoning for levying penalty based solely on non-response to a show cause notice was deemed unsustainable in law.

What were the facts?

A search action on the Balaji Yarn Group, to which the assessee company belonged, led to an addition of Rs. 8,00,000/- on account of unexplained cash credit. The CIT(A) confirmed this addition and further enhanced the income, directing penalty proceedings.

What were the issues?

Whether the penalty under Section 271(1)(c) was rightly levied and sustained when the AO's reasoning for concealment/inaccurate particulars was based on non-response to a show cause notice.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B” BENCH, MUMBAI

Before: SHRI SHAMIM YAHYA & SHRI PAWAN SINGH

For Respondent: Shri. Suman Kumar

Date of Hearing –25.04.2017 Date of Order -25.04.2017

O R D E R PER: SHAMIM YAHYA

This appeal by the assessee is directed against order of Ld. CIT-A dated 25.02.2013 and pertains to assessment year 2002-03.

2.

The grounds of appeal read as under:

1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the penalty levied by the AO u/s.271(1)(c) for Rs.2,10,630/-.

2. The Ld. CIT(A) failed to appreciated that:

Mukul Holding & Trading Co. P. Ltd. ITA no.4012/Mum./2013 a) The Appellant has neither concealed the particulars of its income nor furnished any inaccurate particulars of such income; b) The Appellant has explained satisfactorily the nature and source of share application money received by it; and c) Mere rejection of bonafide explanation per se will not be sufficient to attract penalty u/s.271(1)(c).

3. In reaching to the conclusion and confirming the penalty levied by the AO, CIT(A) omitted to consider relevant factors, considerations, principles and evidences while he was overwhelmed, influenced and prejudiced by irrelevant considerations and factors.

4. In any case the penalty levied by the AO and confirmed by the CIT(A) is excessive and unreasonable. The Appellant craves leave to add, alter, amend and/ or delete the above ground or grounds of appeal.

3.

Brief facts of the case leading to levy of penalty are as under:-

3.1 The appellant is a private limited company engaged in the business of trading is non-ferrous metals and chemicals. Search action u/s.132 was carried out on 10.11.2006 at the premises of Balaji Yarn Group. The appellant being member of the said group was also covered in the search. The assessment was made on 16.12.2008 determining total income of Rs.8,49,610/- by making an addition of Rs.8,00,000/- on account of unexplained cash credit.

3.2 Ld. CIT(A) vide order no. CIT(A)-41/ACCC-33/IT-3/08-09 dated 25.09.2009 confirmed the addition of Rs.8,00,000/- 2

Mukul Holding & Trading Co. P. Ltd. ITA no.4012/Mum./2013 made by the AO and further enhanced the total income by Rs.5,90,000/- and directed the Ld. A.O to initiate penalty proceedings u/s. 271 (1)(c) for the enhanced income.

4.

Assessing officer in the assessment order has observed that assessee is guilty of both concealment of income and furnishing of inaccurate particulars of income. In the penalty order the assessing officer has mentioned that assessee has not replied to the show cause notice. Therefore, he held that assessee was guilty of both concealment of income and furnishing of inaccurate particulars of income. Upon assessee’s appeal Ld. CIT-A observed that assessee was guilty of concealment of income as well as filing of inaccurate particulars of income. However Ld. CIT-A also noted that assessing officer has passed an order in the u/s. 154 to correct a mistake. Another order for penalty was passed on 31.03.2011. On this aspect the Ld. CIT-A has said that he will not make any comment in this regard.

5.

We have heard the Ld. D.R. None appeared on behalf of the assessee. Upon careful consideration we find that it is apparent that the A.O has passed an order u/s. 154 to correct mistake in the present assessment order. Another penalty order has also been passed on 31.03.2011. Further we note that the assessing officer in Mukul Holding & Trading Co. P. Ltd. ITA no.4012/Mum./2013 the penalty proceedings has not properly established as to whether the assessee is guilty of concealment of income or for furnishing inaccurate particulars of income. He has held that since the assessee has not responded to the show cause notice he is guilty of concealment and furnishing of inaccurate particulars. In our considered opinion such a reasoning for levy of penalty is not sustainable in law. Accordingly we set aside order of authorities below delete of the levy of penalty.

In the result this appeal by the assessee stands allowed.

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