2021 (1) TMI 1033 - AT - Income Tax

Levying the penalty u/s 271(1)(c) - Bogus purchases - HELD THAT - AO has initiated the penalty proceedings in both the charges that means he is not sure about which charges, the assessee has committed the default. Hence, this issue is squarely covered by the decision in case of CIT vs. Samson Perinchery 2017 (1) TMI 1292 - BOMBAY HIGH COURT . Hence, on this count, we deleted the penalty. As regards to merits of the case, we noted that the assessee has filed complete ledger account, purchase bills, delivery challans in respect of purchase transactions made with Nimesh Steel Pvt. Ltd for purchase value of ₹ 5,75,536/- and also payment made by account payee cheque. The assessee could not produce only the purchase party for examination of the Assessing Officer and the Assessing Officer levied penalty only on this count. We noted that this cannot be the reason for levy of penalty under section 271(1)(c) because the Assessing Officer is unable to prove the concealment of income in this case. Hence, we delete the penalty and allowed the appeal of assessee.

Summary

Issues:
1. Appeal against the confirmation of penalty under section 271(1)(c) of the Income Tax Act, 1961 for Assessment Year 2009-10.
2. Appeal against the confirmation of penalty under section 271(1)(c) of the Income Tax Act, 1961 for Assessment Year 2010-11.

Analysis:
1. For the first issue regarding the Assessment Year 2009-10, the appeal was against the confirmation of penalty under section 271(1)(c) of the Act. The Tribunal observed that the Assessing Officer had levied the penalty, which was confirmed by the CIT(A). However, the Tribunal noted that the quantum orders related to bogus purchases were set aside, indicating that the penalty levied would not survive. The Tribunal stated that if during the set-aside assessment proceedings, the Assessing Officer believed it was a fit case for penalty, he could reinitiate the penalty proceedings. Consequently, the Tribunal deleted the present penalty proceedings, allowing the appeal of the assessee.

2. Moving on to the second issue concerning the Assessment Year 2010-11, the appeal was against the confirmation of penalty under section 271(1)(c) of the Act. The Tribunal noted that the Assessing Officer had initiated penalty proceedings for both concealment of income and furnishing inaccurate particulars of income. The Tribunal referred to the decision of the Hon'ble Bombay High Court in a relevant case to support the deletion of penalty in such cases. Regarding the merits of the case, the Tribunal found that the assessee had provided sufficient evidence to support the purchases made, including ledger accounts, purchase bills, and delivery challans. The penalty was imposed solely due to the non-production of the purchase party for examination. The Tribunal held that this reason alone was not sufficient to levy a penalty under section 271(1)(c) as there was no proof of income concealment. Consequently, the penalty was deleted, and the appeal of the assessee was allowed in this regard.

In conclusion, both appeals of the assessee were allowed, with the Tribunal deleting the penalty proceedings for both Assessment Years 2009-10 and 2010-11.