ASST CIT 16(2), THANE v. A F FERGUSON & CO, MUMBAI

ITA 5224/MUM/2015 | 2009-2010
Pronouncement Date: 30-11-2017 | Result: Dismissed

Appeal Details

RSA Number 522419914 RSA 2015
Assessee PAN AABFA5846M
Bench Mumbai
Appeal Number ITA 5224/MUM/2015
Duration Of Justice 2 year(s) 24 day(s)
Appellant ASST CIT 16(2), THANE
Respondent A F FERGUSON & CO, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 30-11-2017
Assessment Year 2009-2010
Appeal Filed On 05-11-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A MUMBAI BEFORE HONBLE S/SHRI G S PANNU ( A M) AND PAWAN SINGH ( JM ) I.T.A. NO. 5224/MUM/2015 ( / ASSESSMENT YEA R :2 009 - 10 ) ASSTT. COMMISSIONER OF INCOME TAX 16(2) ROOM NO. 440 4 TH FLOOR AAYAKAR BHAVAN M K ROAD MUMBAI - 400020 / VS. M/S A F FERGUSON AND CO. ALLAHABAD BANK BLDG BOMBAY SAMACHAR MARG MUMBAI - 400001 / REVENUE BY : SHRI RAJESH KUMAR YADAV / ASSESSEE BY : SHRI KETAN VED PAN : AA BFA5846M / DATE OF HEARING : 30.11. 2017 / DATE OF PRONOUNCEMENT : 30.11. 2017 / O R D E R PER G S PANNU A. M: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE O RDER OF THE LD.CIT(A) - 5 MUMBAI DATED 10.8.2015 FOR THE ASSESSMENT YEAR 20 08 - 09 WHICH IS ARISING OUT OF ASSESSMENT ORDER PASSED BY THE AO U/S 271(1)(C) DATED 26.3.2014. 2. THE SOLITARY ISSUE IN THIS APPEAL RELATES TO THE LEVY OF PENALTY UNDER SECTION 27 1(1)( C) OF THE ACT AMOUNTING TO RS.12 10 000/ - WHICH HAS SINCE BEEN DELETED BY THE LD.CIT(A). 2 I.T.A. NO. 5224/ MUM/201 5 3. PERTINENTLY THE RELEVANT FACTS ARE THAT IN THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT DATED 12.12.2011 TWO ADDITIONS WERE MADE WHICH ARE RELEVAN T FOR OUR PURPOSES VIZ THE ADDITION ON ACCOUNT OF UN - RECONCILED AIR INFORMATION RS.54 89 270/ - AND ON ACCOUNT OF SUNDRY CREDITORS - RS.4 25 438/ - . IT HAS BEEN EXPLAINED THAT IN THE QUANTUM PROCEEDINGS THE LD. CIT(A) VIDE ORDER DATED 28.12.2012 DELETED TH E ADDITION ON ACCOUNT OF UN - RECONCILE AIR INFORMATION TO THE EXTENT OF RS.23 08 301/ - . SUBSEQUENTLY VIE ORDER DATED 26.3.2014 THE AO LEVIED PENALTY U/S 271(1)( C) OF THE ACT ON THE THEN SUBSISTING ADDITION ON ACCOUNT OF UN - RECONCILED AIR INFORMATION AND ON ACCOUNT OF SUNDRY CREDITORS. THE AO LEVIED THE PENALTY OF RS.12 02 030/ - WHICH EQUIVALENT TO 100% OF THE TAX SOUGHT TO BE EVADED ON SUCH INCOME. THIS PENALTY HAS BEEN DELETED BY THE LD.CIT(A) AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE US. 4 . BEFORE US IT HAS BEEN POINTED OUT THAT SO FAR AS THE ADDITION ON ACCOUNT OF UN - RECONCILED AIR INFORMATION IS CONCERNED THE ENTIRE ADDITION HAS SINCE BEEN DELETED BY THE TRIBUNAL VIDE ITS ORDER DATED 17.10.2014 PASSED IN ITA NO.437/MUM/2013 AND THER EFORE THE PENALTY HAS RIGHTLY BEEN DELETED BY THE LD.CIT(A). IN SO FAR AS THE PENALTY WITH REGARD TO THE ADDITION ON ACCOUNT OF SUNDRY CREDITORS OF RS.4 25 483/ - IS CONCERNED THE LD.AR - ASSESSEE POINTED OUT THAT THE LD.CIT(A) GAS DELETED THE PENALTY FOL LOWING THE RATIO OF DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004 - 05 3 I.T.A. NO. 5224/ MUM/201 5 PASSED IN ITA NO.8766/MUM/2010 DATED 23.7.2014 WHEREIN IN SIMILAR CIRCUMSTANCES LEVY OF PENALTY HAS BEEN SET ASIDE. 5. IN THIS BACKGROUND IN SO FAR A S THE DELETION OF PENALTY IN RELATION TO THE ADDITION ON ACCOUNT OF UN - RECONCILED AIR INFORMATION IS CONCERNED THE FACTUAL MATRIX BROUGHT OUT BY THE LD.AR - ASSESSEE HAS NOT BEEN DISPUTED BY THE LD.DR THEREFORE TO THAT EXTENT THE ORDER OF THE LD.CIT(A) IS HEREBY AFFIRMED. 6 . SO FAR AS THE PENALTY LEVIED IN RELATION TO THE ADDITION OF RS.4 25 483/ - ON ACCOUNT OF SUNDRY CREDITORS IS CONCERNED THE LD. DR POINTED OUT THAT THE ADDITION WAS MADE DURING THE ASSESSMENT PROCEEDINGS BECAUSE THE ASSESSEE HAD NOT TREATED THE BALANCE S AS INCOME DESPITE FOLLOWING THE CASH SYSTEM OF ACCOUNTING. ACCORDING TO HIM THE PENALTY WAS JUSTIFIABLY LEVIED BY THE AO. 7 . ON THIS ASPECT WE FIND THAT THE LD.CIT(A) MADE NO MISTAKE IN DELETING THE PENALTY AS ON SIMILAR CIRCUMSTA NCES THE TRIBUNAL VIDE ORDER DATED 23.7.2014 PASSED IN ASSESSEES CASE (SUPRA) HAD DELETED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. AS PER THE TRIBUNAL NO PENALTY IS LEVIABLE AS THERE WAS NO CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF IN COME ON THIS ASPECT. EVEN OTHERWISE WE FIND THAT THE ADDITION ON ACCOUNT OF OUTSTANDING SUNDRY CREDITORS IS A RESULT OF MERE DIFFERENCE OF OPINION BETWEEN THE ASSESSEE AND THE REVENUE AND THIS IS NOT A FIT CASE FOR LEVY OF PENALTY FOR 4 I.T.A. NO. 5224/ MUM/201 5 CONCEALMENT OR FURNI SHING INACCURATE PARTICULARS OF ANY INCOME WITHIN THE MEANING OF SECTION 271(1)( C ) OF THE ACT. THUS ON THIS ASPECT ALSO IN OUR VIEW THE LD.CIT(A) RIGHTLY DELETED THE PENALTY. 8 . RESULTANTLY THE ORDER OF THE LD.CIT(A) IS AFFIRMED AND APPEAL OF THE REVENUE IS DISMISSED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT AFTER CONCLUDING THE HEARING OF THE BOTH THE PARTIES ON 30.11.2017. SD SD ( PAWAN SINGH ) ( G.S.PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 30. 1 1 . 2017 SR.PS:SRL: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT( A) 4. / CIT CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F ILE / BY ORDER TRUE COPY / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI