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Income Tax Appellate Tribunal, MUMBAI BENCHES “C”, MUMBAI
Before: Shri Joginder Singh, & Shri Ashwani Taneja
Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 09/05/2013 of the Ld. first Appellate Authority, Mumbai. The only ground raised in this appeal pertains to confirming 2 Cipla Limited. Rs.38,80,657/- imposed u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter the Act).
During hearing of this appeal, at the outset, it was pointed out by the ld. DR that quantum appeal in this case has been sent to the file of the Assessing Officer, therefore, penalty appeal may also be sent to the file of the Assessing Officer. The ld. counsel for the assessee, contended that since the addition has been sent to the file of the Assessing Officer, the penalty may be deleted.
2.1. We have considered the rival submissions and perused the material available on record. Before coming to any conclusion, we are reproducing hereunder the relevant portion from the order of the Tribunal dated 25/07/2014 (ITA No.6471/Mum/2010) for ready reference and analysis:-
“ 2. The Ld CIT (A) has further erred in upholding disallowance of alleged bogus purchases in the amount of Rs. 38,80,657/-. Without prejudice to the generality, the Ld CIT (A) has erred in alleging unclarified discrepancies. Your appellant is aggrieved by the denial of opportunity to clarify the alleged discrepancies. Your appellant seeks the opportunity to clarify to the Hon’ble Tribunal that the alleged discrepancies are amenable to appropriate explanation with reference to the material on record and such supplementary material which may be requisitioned in the course of the proceedings.
The Ld CIT (A) has further erred in upholding disallowance of Rs. 73,75,369/- under section 14A of the Act We note that in the aforesaid ground, raised by the assessee, denial of opportunity to clarify the alleged discrepancies was raised by the assessee and after hearing the assessee as well as the Revenue following conclusion was arrived at by the Tribunal.
7. Referring to grounds no.2 & 3, Ld Counsel for the assessee mentioned that the said grounds require revisit to the file of the AO considering the fact that the assessee was not given a proper opportunity to clarify the allegations against the bogus purchases on one side and the Assessing Officer failed to record his dissatisfaction with regard to the claim of the assessee that no expenditure was incurred for earning of the exempt income and this is relevant for the issue raised in ground no.3. Considering the concurrence of both the parties for remanding these two issues to the file of the AO, we accordingly allow the grounds no.2 and 3 raised by the assessee for statistical purposes.
If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, conclusion drawn in the order of the Tribunal and the assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we note that the assessee was not provided proper opportunity of being heard and to clarify the stand with respect to bogus purchases, in that situation, 4 Cipla Limited. the quantum addition was sent to the file of the ld. Assessing Officer, therefore, in our view, it is a clear cut case of sending the penalty appeal also to the file of the ld. Assessing Officer as the same shall germane out of the set- aside proceedings, pursuant to the direction of the Tribunal. Therefore, the appeal of the assessee is also remanded to the file of the ld. Assessing Officer for fresh adjudication in accordance with law. Needless to mention here that due opportunity of being heard be provided to the assessee.
Finally, the appeal of the assessee is allowed for statistical purposes.
This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 17/11/2015.