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TMI Blog2021 (2) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... o very minor and the assessee does not deserve to be visited with the rigour of penalty. We are of the considered opinion that assessee's conduct is not contumacious and his claims are not mala fide. Hence, assessee should not be visited with rigour of penalty. Accordingly, we set aside the orders of the authorities below and delete the penalty. Appeal filed by the assessee stands allowed. - I.T.A. No. 1355/Mum/2017 - - - Dated:- 10-2-2021 - Shamim Yahya , Member ( A ) And Pavankumar Gadale , Member ( J ) For the Appellant : Neha Paranjpe For the Respondents : Brajendra Kumar ORDER Shamim Yahya, Member (A) This appeal by the assessee is directed against the order of learned CIT(A) dated 28.9.2016 and pertains t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation with respect to nonpayment of MVAT and sales tax liability. Hence, the levy of penalty on the disallowance of ₹ 27,15,360/- under section 271(1)(c) is not at all justified and the same may be deleted. 6. The Ld. CIT(A) further erred in upholding the action of Ld. A.O. in levying concealment penalty on the disallowance of ₹ 1,257/- being difference as per AIR information and the income disclosed in the Profit Loss Account without appreciating the facts and circumstances of the case. Hence, the levy of concealment penalty under section 271(1)(c) on the addition of ₹ 1,257/- is not at all justified and the same may be deleted. 3. This appeal was earlier disposed of by this Tribunal vide ex-parte order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntarily by the assessee. Hence, had the case not been selected for scrutiny the assessee could have easily walked away with the wrong claims. Holding it to be a case of inaccurate furnishing of particulars of income, the AO imposed penalty of ₹ 8.39 lakhs on the said addition of ₹ 27.15 lakhs under section 271(1)(c) of the Act. 6. Insofar as the smaller amount of addition of ₹ 0.01 lakh is concerned, the AO had made the same on account of the inability of the appellant to reconcile the difference between its P L a/c and form No. 26AS. The AO noted no income of ₹ 709/- in the computation with regard to M/s. Globus Sport Ltd., similarly no income of ₹ 570/- in the computation with regard to M/s. Supercra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the following dates - firstly the date on which the service was provided or would be provided, secondly the date of Invoice and thirdly the date of actual payment. The option to pay service tax on a receipt basis was thus available only till 30th June 2011 The assessment under consideration payable only on actual receipt basis. Due to disputes, payments had not been released by several parties and accordingly ST and MVAT had not been paid, it would accordingly not be due to be paid, the actual receipt thereof not having happened. As a matter of fact the actual receipt of the amounts - as submitted by the AR - has not happened even as of today. He further clarified that this position had been clarified even in the Tax Audit Report filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the penalty to the extent of ₹ 1,257/- for 26AS showing higher income and assessee showing lower income. 9. Against this order assessee is in appeal before us. 10. We have heard both the counsel and perused the records. We find that learned CIT(A) is totally wrong in holding that just because 43B liability is shown by tax audit report penalty has to be fastened upon the assessee. In an identical situation this Tribunal in ITA No. 895/Mum/2015 for A.Y. 2005-06 vide order dated 30.7.2018 has deleted the similar penalty by observing as under:- We have carefully considered the submissions and perused the records. We find that in this case penalty u/s. 271(1)(c) has been levied for the disallowance of provision for excise dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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