Income Tax Appellate Tribunal - Mumbai
Asst Cit 16(2), Thane vs A F Ferguson & Co, Mumbai on 30 November, 2017
आयकर अपीऱीय अधिकरण, मुंबई न्यायपीठ "ए", मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL BENCH "A" MUMBAI BEFORE HON'BLE S/SHRI G S PANNU (AM), AND PAWAN SINGH,(JM) I.T.A. No.5224/Mum/2015 (निर्धारण वर्ा / Assessment Year:2009-10) Asstt. Commissioner of Income M/s A F Ferguson and Co., Tax 16(2), Allahabad Bank Bldg, th Room No.440, 4 floor, बनाम/ Bombay Samachar Marg, Aayakar Bhavan, Vs. Mumbai-400001 M K Road, Mumbai-400020 अपीऱाथी की ओर से / Revenue by : Shri Rajesh Kumar Yadav प्रत्यथी की ओर से/ Assessee by : Shri Ketan Ved PAN : AABFA5846M सुनवाई की तारीख /Da te o f He a r in g : 30.11.2017 घोषणा की तारीख /Da te o f Pro n ou n ce me nt : 30.11.2017 आदे श / O R D E R PER G S PANNU, A. M:
This is an appeal filed by the revenue against the order of the ld.CIT(A)-5, Mumbai, dated 10.8.2015 for the assessment year 2008-09 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 271(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/2015
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 relevant 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 the 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 therefore 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 following the ratio of decision of the Tribunal in assessee's own case for the assessment year 2004-05 3 I.T.A. No.5224/Mum/2015 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 as 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 balances 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 circumstances, the Tribunal vide order dated 23.7.2014 passed in assessee's 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 income 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/2015 concealment or furnishing 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 मुंबई Mumbai; ददन ुंक Dated : 30.11.2017 Sr.PS:SRL:
आदे श की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to :
1. अपीऱाथी / The Appellant
2. प्रत्यथी / The Respondent
3. आयकर आयुक्त(अपीऱ) / The CIT(A)
4. आयकर आयक् ु त / CIT - concerned
5. ववभागीय प्रतततनधि, आयकर अपीऱीय अधिकरण, मुंब ु ई / DR, ITAT, Mumbai
6. गार्ड फाईऱ / Guard File आदे श नस र/ BY ORDER, True copy उि/सह यक िुंजीक र (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, मुंब ु ई / ITAT, Mumbai