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Ito 9(3)(3), Mumbai vs Fourcee Equipments & Services P.Ltd, ... on 9 May, 2017

आयकर अपील य अ धकरण, मंब ु ई यायपीठ, एफ,मंब ु ई ।

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES "F", MUMBAI ी जो ग दर संह, या यक सद य एवं ी अ वनी तनेजा, लेखा सद य, के सम Before Shri Joginder Singh, Judicial Member, and Shri Ashwani Taneja, Accountant Member ITA NO.4420/Mum/2015 Assessment Year: 2011-12 Income Tax Officer-9(3)(3), M/s Fourcee Equipments & R. No.471, 4th Floor, बनाम/ Services Pvt. Ltd.

Aayakar Bhavan,                        329, Laxmi Mall, Laxmi
M.K. Road,                    Vs.      Industrial Estate, New Link
Mumbai-400020                          Road, Andheri(W),
                                       Mumbai-400053
     (राज व /Revenue)                       ( नधा$%रती /Assessee)
                                             P.A. No.AAACF2512R

   राज व क  ओर से / Revenue by       Shri B.S.Bist-DR
   नधा$%रती क  ओर से / Assessee by   None


   ु वाई क( तार)ख / Date of Hearing :
  सन                                            08/05/2017

  आदे श क( तार)ख /Date of Order:                09/05/2017
                                  2        M/s Fourcee Equipments & Services Pvt. Ltd.
                                                          ITA No.4420/Mum/2015




                      आदे श / O R D E R

Per Joginder Singh (Judicial Member) The Revenue is aggrieved by the impugned order dated 24/03/2015 of the ld. First Appellate Authority, Mumbai, by deleting penalty of Rs.15 lakh imposed u/s 271E of the Income Tax Act, 1961 (hereinafter the Act) holding that the amount received by the assessee was not in the nature of loan or deposit, ignoring lack of evidence brought on record to evidence that the amount was received as advance.

2. During hearing, none was present for the assessee for the assessee. This appeal was filed by the Revenue on 23/07/2015 for which registered notices of hearing were sent to both sides on 06/04/2017, the appeal was adjourned for today and both the parties were informed. Today, at the time of hearing, the assessee neither presented itself nor moved any adjournment petition. It seems that the assessee has nothing to say and the appeal cannot be kept pending indefinitely, therefore, we have no option but to proceed ex-parte, qua the assessee and tend to dispose of this appeal on the basis of material available on record. Shri B.S. Bist Ld. DR, defended the imposition of penalty by advancing arguments, which is identical to the ground raised.

2.1. We have considered the arguments of the ld. DR and perused the material available on record. The facts, in 3 M/s Fourcee Equipments & Services Pvt. Ltd.

brief, are that M/s Dhananjay Containers, at the relevant time, was the customer of the assessee company and was purchasing Molasses. The assessee company was holding certain stock of molasses, as on 01/04/2009, being left out of its procurement for export and it was decided to sale the same in domestic market. The assessee received Rs.83,10,968/- as advanced, for supply of molasses from M/s Dhananjay Containers. However, the customer rejected the quality of existing stock as the same was not found to be suitable to the end user/customers. Thus, the said advance was refunded back in the Financial Year 2010-11 and the payment of Rs.15 lakh was part of such repayment, received as advanced by the assessee company. However, the Ld. Assessing Officer held the assessee guilty of violation of section 269T of the Act. As per the Revenue, the assessee had shown the repaid amount to M/s Dhananjay Container in cash, therefore, penalty u/s 271E of the Act, amounting to Rs.15 lakh, was levied.

2.2. On appeal, before the Ld. Commissioner of Income Tax (Appeal), the submissions of the assessee were considered and finally it was found from the balance sheet and tax audit report that the sum of Rs.83,10,968.90/- was received by the assessee as advance from its customers M/s Dhananjay Containers and from this advance, the amount of Rs.15 lakh was repaid on 03/06/2010. The Ld. Commissioner of Income Tax (Appeal) considered the decision in Chaubey Overseas Corporations 4 M/s Fourcee Equipments & Services Pvt. Ltd.

vs CIT (2008) 170 taxman 9 along with the decision from Hon'ble Gujarat High Court CIT vs Madhav Enterprises (P.) Ltd. (2013) 356 ITR 588 (Guj.) and held that advances received from customers cannot be treated as deposits for the purposes of section 269T of the Act. The penalty was deleted. The Revenue is aggrieved and is in appeal before this Tribunal. On perusal of record and after hearing the submissions of Ld. DR, we are in agreement with the uncontroverted finding that the Department has accepted that the sum of Rs.83,10,968/- was received as advance from customers in earlier years, therefore, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal) as the First Appellate Authority has duly considered the aforesaid decisions from Hon'ble High Courts. No adverse material was brought to our notice by the Revenue in support of its claim, therefore, the stand of the Ld. Commissioner of Income Tax (Appeal) is affirmed.

Finally, the appeal of the Revenue is dismissed.

Order pronounced in the open court on 09/05/2017 Sd/- Sd/-

(Ashwani Taneja) (Joginder Singh) लेखा सद#य / ACCOUNTANT MEMBER या$यक सद#य / JUDICIAL MEMBER मब ंु ई Mumbai; +दनांक Dated : 09/05/2017 f{x~{tÜ? P.S/. न.स.

5 M/s Fourcee Equipments & Services Pvt. Ltd.

आदे श क %$त'ल(प अ)े(षत/Copy of the Order forwarded to :

1. अपीलाथ/ / The Appellant

2. 01यथ/ / The Respondent.

3. आयकर आय3 ु त(अपील) / The CIT, Mumbai.

4. आयकर आय3 ु त / CIT(A)- , Mumbai

5. 5वभागीय 0 त न ध, आयकर अपील)य अ धकरण, मब ुं ई / DR, ITAT, Mumbai

6. गाड$ फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, स1या5पत 0 त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मब ुं ई / ITAT, Mumbai