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Showing 1 to 20 of 430091 Records
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2025 (4) TMI 1642
Issuance of SCN and demand against a deceased person - HELD THAT:- A perusal of the Section 93 would reveal that the same only deals with the liability to pay tax, interest or penalty in a case where the business is continued after the death, by the legal representative or where the business is discontinued, however, the provision does not deal with the fact as to whether the determination at all can take place against a deceased person and the said provision cannot and does not authorise the determination to be made against a dead person and recovery thereof from the legal representative.
Once the provision deals with the liability of a legal representative on account of death of the proprietor of the firm, it is sine qua non that the legal representative is issued a show cause notice and after seeking response from the legal representative, the determination should take place.
The determination made in the present case wherein the show cause notice was issued and the determination was made against the dead person without issuing notice to the legal representative, cannot be sustained - Petition allowed.
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2025 (4) TMI 1641
Challenge to repeated issuance of SCN by the Delhi Goods and Service Tax Department and impugned order - challenge on the ground that despite a specific reply having been placed on record that the Petitioner was suffering from a stroke, the Department proceeded and passed the impugned order - HELD THAT:- Considering the overall facts, there is no doubt that the Petitioner has been continuously following up with the Department and filing replies diligently. The medical ground which was stated on 23nd December, 2024 ought to have been considered emphathetically as the same was accompanied with all the documents from Indraprastha Apollo Hospital.
The impugned order dated 8th January, 2025 is set aside - Petition disposed off.
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2025 (4) TMI 1640
Challenge to validity of N/Ns. 09/2023-Central Tax dated 31th March 2023 and 56/2023-Central Tax dated 28th December 2023 - SCN was not in the knowledge of the Petitioner, hence no reply was filed - violation of principles of natural justice - HELD THAT:- This Court is of the opinion that the delay in filing the appeal deserves to be condoned and the appeal deserves to be heard on merits.
The Appeal is restored to its original number before the Appellate Authority - Petition disposed off.
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2025 (4) TMI 1639
Challenge to order in original - the written submissions filed by the Petitioner have not been considered by the Respondent No. 1 and no personal hearing notice has been issued either - violation of principles of natural justice - HELD THAT:- The Petitioner having had no the opportunity to file its reply to the Department and no personal hearing having been effectively afforded to the Petitioner, this Court is of the opinion that the matter deserves to be remanded to the Department for fresh consideration, only insofar as the Petitioner is concerned.
The Department shall make an endeavour to ensure that in terms of Section 169 of the Central Goods and Services Act, 2017, assessees are served through the common GST portal as also through their personal email and mobile number. In addition, the notice may also be sent through speed post so that situations as have arisen in this case, can be avoided in the future.
Let the final SOP be placed on record by the next date of hearing - Petition disposed off.
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2025 (4) TMI 1638
Cancellation of GST registration of the petitioner - non-filing of GST returns for a continuous period of six months - HELD THAT:- Having regard to the fact that the GST registration of the petitioner has been cancelled under Section 29 (2) (c) of the CGST Act, 2017 for the reason that the petitioner did not submit returns for a period of 6 (six) months and more; and the provisions contained in the proviso to sub-rule (4) of Rule 22 of the CGST Rules, 2017 and cancellation of registration entails serious civil consequences, this Court is of the considered view that in the event the petitioner approaches the officer, duly empowered, by furnishing all the pending returns and make full payment of the tax dues, along with applicable interest and late fee, the officer duly empowered, has the authority and jurisdiction to drop the proceedings and pass an order in the prescribed Form.
This writ petition is disposed of by providing that the petitioner shall approach the concerned authority within a period of 2 (two) months from today seeking restoration of his GST registration.
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2025 (4) TMI 1637
Dismissal of appeal filed by the petitioner has been dismissed on ground of it being time barred - failure to furnish returns for six months - HELD THAT:- The impugned order for cancellation of registration with effect from 28.02.2022 under Section 29 (2) (c) of the CGST Act, 2017 was issued on 08.07.2022 and the Petitioner had filed an appeal under Section 107 of the CGST Act, which is the appellate provision on 29.09.2023 through online and hard copy of the same was submitted in the office of the appellate authority on 06.10.2023; as such, after calculating the entire period, it appears that the appeal has been filed after one year and three months beyond the normal period of filing of appeal as prescribed under Section 107 (1) of the CGST Act, 2017.
On plain reading of Section 107 makes the position crystal clear that the appellate authority has no power to allow an appeal to be presented beyond the period of one month for filing of appeal. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to one month after the expiry of three months which is the normal period for preferring appeal.
The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.
The Petitioner-Firm is not entitled for any relief on the ground of delay and latches coupled with the fact of being lethargic in approach; inasmuch as, on the one hand, the petitioner did not file return regularly and thus has not complied with GST REG-17/31 issued to him in any manner; and on the other hand, the appellant filed appeal after delay of more than one year and three months which is admittedly beyond the period of limitation as per the Act.
Conclusion - Neither there is any perversity in the order of cancellation of GST registration; nor there is any necessity for interference with the appellate order, inasmuch as, the same has been filed beyond the statutory period of limitation.
Application dismissed.
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2025 (4) TMI 1636
Challenge to SCN and N/N. 9/2023-Central Tax dated 31st March, 2023 and 56/2023-Central Tax dated 28th December, 2023 issued by the Central Board of Indirect Taxes and Customs - extension of time limits for adjudication under the GST regime - Petitioner has not been afforded an opportunity to be heard - Violation of principles of natural justice - HELD THAT:- This Court is of the opinion that since the Petitioner has not been afforded an opportunity to be heard and the said SCNs and concurrent impugned orders have been passed without hearing the Petitioner, an opportunity ought to be afforded to the Petitioner to contest the matter on merits.
Conclusion - The Petitioner is granted 30 days’ time to file the reply to SCNs. Upon filing of the reply, the Adjudicating Authority shall issue to the Petitioner, a notice for personal hearing.
The impugned order set aside - petition allowed.
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2025 (4) TMI 1635
Issuance of ex-parte assessment order and demand notice under Section 73 of the CGST/UPGST Act, 2017 against a corporate debtor undergoing Corporate Insolvency Resolution Process (CIRP), after the approval of the Resolution Plan by the National Company Law Tribunal (NCLT) - HELD THAT:- This Court in M/S NS Papers Limited and another Vs. Union of India through Secretary and others] [2024 (12) TMI 989 - ALLAHABAD HIGH COURT], after dealing with a catena of judgments rendered by the Supreme Court and also other High Courts held as 'the arguments raised by the learned counsel appearing on behalf of the respondents is without any merit on two counts. Firstly, it is clear by the letter dated March 8, 2021 that the petitioner had informed the Income Tax Authorities with regard to approval of resolution plan. Secondly, the department itself had filed a claim before the Resolution Professional, and accordingly, the argument that the department was not aware of the IBC proceedings holds no water.'
Conclusion - The principle is crystal clear that once Resolution Plan has been approved by the NCLT, all other creditors are barred from raising their claims subsequently, as the same would disrupt the entire resolution process.
Petition allowed.
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2025 (4) TMI 1634
Seeking directions to the Respondents to supply the Relied Upon Documents (RUD) in the Show Cause Notice - principles of natural justice - HELD THAT:- Considering the nature of request, the Department should have supplied a complete set of RUDs to the Petitioners to enable them to file proper reply to the SCN dated 18th March 2025 - Accordingly, it is directed that all the above RUDs in full be provided to the Petitioners within one week.
Petition disposed off.
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2025 (4) TMI 1633
Service of SCN - SCN did not come to the knowledge of the Petitioner as the same was uploaded by the Respondent No. 1-Department on the ‘additional notices tab’ - violation of principles of natural justice - HELD THAT:- In view of the fact that the Petitioner did not get an opportunity to file a reply to the SCN, this Court is of the opinion that the Petitioner ought to be afforded an opportunity to file a reply. Let the reply to the SCN be now filed within a period of 30 days.
The Adjudicating Authority shall proceed and pass order with respect to the SCN after affording a hearing to the Petitioner.
The demand order is set aside - petition disposed off.
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2025 (4) TMI 1632
Validity of reopening of assessment - allegation of violation of the provisions of section 50C of the Income Tax Act, 1961 and due to noncompliance, assessee also failed to explain the transaction - as decided by HC [2024 (1) TMI 1009 - BOMBAY HIGH COURT] As petitioner states, and rightly so, that provisions of Section 50C of the Act would apply only to a seller and not the assessee in this case, who is the buyer of the property. There is nothing in the notice to explain as to how, if the transaction amount is less than the stamp duty value, there can be escapement of any income particularly in the hands of a buyer. Sanction should have also applied his mind and satisfied himself that the order passed u/s148A(d) of the Act was being issued correctly by applying mind and cannot be a mechanical sanction.
HELD THAT:- There is a gross delay of 331 days in filing the Special Leave Petition which has not been satisfactorily explained by the petitioners.
Special Leave Petition is, accordingly, dismissed on the ground of delay. Pending applications, if any, shall also stand disposed of.
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2025 (4) TMI 1631
Enforceability of treaty - Necessary notification not issued by the Government for brining the treaty into force - Most Favoured Nation (MFN) - Indian treaties with countries that are members of the Organisation for Economic Cooperation and Development (‘OECD’) - as decided by HC [2023 (11) TMI 1373 - DELHI HIGH COURT] notification u/s 90(1) is necessary and a mandatory condition for a court, authority, or tribunal to give effect to a DTAA, or any protocol changing its terms or conditions, which has the effect of altering the existing provisions of law.
The fact that a stipulation in a DTAA or a Protocol with one nation, requires same treatment in respect to a matter covered by its terms, subsequent to its being entered into when another nation (which is member of a multilateral organization such as OECD), is given better treatment, does not automatically lead to integration of such term extending the same benefit in regard to a matter covered in the DTAA of the first nation, which entered into DTAA with India. In such event, the terms of the earlier DTAA require to be amended through a separate notification u/s 90. And benefit of a “same treatment” clause, based on entry of DTAA between India and another state which is member of OECD, the relevant date is entering into treaty with India, and not a later date, when, after entering into DTAA with India, such country becomes an OECD member, in terms of India’s practice.
HELD THAT:- We are not inclined to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petitions are dismissed.
Pending application(s), if any, shall stand disposed of.
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2025 (4) TMI 1630
Validity of reopening of assessment u/s 147 - extracts of reasons for reopening are furnished and not the complete reasons recorded - petitioner's failure to file return of income within the stipulated time u/s 148 - Whether petitioner having not filed its return of income as per the notice u/s 148 today cannot raise a plea that based on the extracts of the reasons, the proceedings are bad-in-law?
HELD THAT:- Admittedly, the petitioner has not complied with the directions issued in case of GKN Driveshafts (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT]. The petitioners did not file its return of income pursuant to the Section 148 of the Act within 30 days. The petitioner filed its return of income much after the receipt of notice under Section 142 (1) of the Act i.e. the petitioner filed its return of income on 4 December 2021. In our view, the petitioner today cannot be heard to submit that based on the extracts of reasons, the proceedings are bad-in-law.
The petitioner ought to have complied with the directions issued by the Supreme Court in the case of GKN Driveshafts (India) Ltd. (supra). Now that the return is filed which entitles the petitioner to reasons for reopening of the case.
Therefore in view of the above and in the interest of justice, we propose to pass the following order :-
(i) Respondent no.1 to furnish complete reasons recorded for reopening the assessment within one week from the date of uploading the present order.
(ii) The petitioner to file its objections to the aforesaid reasons furnished within a period of 2 weeks from the date of receipt of reasons recorded within a period of 2 weeks from the date of receipt of objections.
(iii) Respondent no.1 to decide the objections and pass a speaking order dealing with the objections of the petitioner raised above.
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2025 (4) TMI 1629
Reassessment order issued without generating a DIN, without documents attached to the assessment order and the notice were also issued in the hand-writing signature of the AO - HELD THAT:- Subsequently, the AO has cured the defect and the AO issued a digitally signed letter with computer generated DIN and letter number. There is no contention of the petitioner that the online service of orders-letter present has not been served upon the petitioner. It is, therefore, evident that on the same date, the defect was cured, therefore, all issues raised in this regard by the petitioner would liable to fail.
Whether revenue proceeding justified in relying upon the complaint and the statement of the complainant without giving an opportunity to the petitioner to cross-examine the complainant? - Not only the copy of complaint but even the documents showing transactions of the firm were made available to the petitioner. The impugned order is not based on any examination of the complainant. In fact, there is no recording of the statement of the complainant or any other witness. The impugned order of assessment is based upon the materials which came to the notice of the AO. After analysing the same, when the AO was of the view that despite supply of reason of proceedings and other relevant documents to the assessee as well as sufficient opportunity, the assessee has failed to prove and substantiate that how undisclosed sales amount have been accounted in the books of accounts for the assessment year 2017-18, he has passed the impugned order.
It is not for this Court sitting in its writ jurisdiction to analyse the kind of information and the documents which were in possession of the AO while passing the impugned order of assessment.
In result, we find no jurisdictional error in the impugned order. These writ applications are dismissed but with liberty to the petitioner to seek its statutory remedy in appeal, if so advised, before the competent/authority appropriate forum.
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2025 (4) TMI 1628
Validity of reassessment proceedings - period of limitation - excess deduction claimed by the assessee u/s 80IB - whether the date of claim of deduction u/s 80IA/IB would be proper or whether the assessments for the periods 2002-03, 2003-04 and 2004-05 required to be re-visited u/s 148?
HELD THAT:- As far as the first two assessment years are concerned, reassessment proceedings have been initiated beyond the period of four years from the end of the relevant assessment year, thus attracting the application of proviso to Section 147 of the Act which we will presently advert to.
For assessment year 2004-05, the re-opening is within the period of 4 years from the end of the relevant assessment year. Hence, as far as assessment years 2002-03 and 2003-04 are concerned, an additional condition that is cast upon the revenue is as set out under the proviso to Section 147 requiring that the Department should establish that the assessee has not made a full and true disclosure of all material aspects in its returns of income at the initial stage. It is only upon this burden being discharged that the Department would be in a position to avail the extended period of limitation from 4 to 6 years.
The income tax returns are full and complete, in that there is no omission of the material particulars in regard to deduction under Section 80IA/IB. In fact, the very trigger for these proceedings is a Certificate issued by the Chartered Accountant in respect of the years in question where the Chartered Accountant has, in column 8 in Form 10 CCB stated that the commencement of production of business was on 18.03.1998. In column 9 of Form10 CCB annexed to the return, the initial year of claim is shown to be 2000-01.
The assessee has explained that the date of commencement of production ought not to have been 18.03.1998, as that was the date on which the Licence to Work had been granted to operate the Rakholi factory. We find merit in the contention that it is only when the Licence to Work had been granted, would the assessee proceed to install machinery and thereafter commence manufacture. Hence the date of grant of Licence can never normally be the date of commencement of business. Hence, there is a clear error in the date set out in column 8 of Form 10 CCB where the date of commencement of production has been is shown to be the date on which the Licence to Work had been granted.
It is nobody’s case that the date stipulated in error was motivated. In fact, had it been the intention of the assessee to suppress information or to obtain a benefit that it was not eligible for, it would have ensured that there was no mismatch between the particulars in columns 8 and 9 of Form 10 CCB as the very next column, i.e., column 9 reveals the initial year of claim as 2000-01. Hence it is evident that the date 18.03.1998 in column 8 was only an error and nothing more.
The same error repeats itself as far as the Chinchpada unit is concerned, except that in column 8 in Form 10 CCB relating to Chinchpada unit, the date of commencement of production is shown as 07.06.1996 which is the date on which the Licence to Work had been granted. Column 9 for that unit reveals the initial year of claim as 1999- 2000. The same explanation as set out for the Rakholi unit has been furnished for the Chinchpada unit as well and the conclusions of the Court supra would apply equally as far as this unit too is concerned.
As pointed out by learned Senior Counsel, the use of the word ‘true’ in the proviso to Section 147 is a charge upon the assessee to have intended to provide false information at the first instance. Hence the use of the word ‘true’, as understood in common parlance would carry with it the requirement that the department must establish animus or the intention to suppress material, to the assessee’s advantage. The Court agrees that there is no intention to suppress information to obtain a benefit to which it was disentitled. On the other hand, the information supplied has been erroneous, to its disadvantage. At best, it may be said that the assessee has been remiss. However, this, by itself, would not establish falsity of the material particulars provided at the initial stage.
A perusal of the orders indicates detailed reference to the discussions that were had qua the officer and the assessee. In conclusion, the officer has carefully and consciously recorded that as far as deduction under Chapter VI A is concerned, in the order of assessment for assessment year 2000-01, the year of claim for Rakholi unit was the first year and for the Chinchpada unit was the second year.
The law requires the assessing officer to specifically record in each assessment year, the year for which the claim of the assessee u/s 80IA/IB was being considered. It is in compliance of this, that the assessing officer has been careful and conscious enough to set out the year of claim in the assessment order itself.
It is also relevant that those assessment orders, for the previous years, i.e., 2000-01 and 2001-02, remain undisturbed even at this point of time. We, hence, find that the action of the Assessing Officer to have cherry-picked the assessments for assessment years 2002-03, 2003-04 and 2004-05 alone to disturb the sequence of claim as being wholly misconceived and without any basis whatsoever.
Thus, as far as the first two years are concerned, the assessing officer has availed the benefit of larger limitation of 6 years which he is not entitled to, since there has been no untrue or incomplete disclosure by the assessee at the first instance.
As far as assessment year 2004-05 is concerned, we find that the grant of deduction is based on the records. There is absolutely no material available to indicate that the original order of assessment is liable to be re-opened.
In Kelvinator India Ltd [2010 (1) TMI 11 - SUPREME COURT] which is a matter relating to reassessment within 4 years, the Supreme Court has categorically emphasised the difference between proceedings for re-assessment and proceeding for review holding that the department officer has the power only to re-assess and not review on the same facts. Writ appeal dismissed.
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2025 (4) TMI 1627
Addition u/s 40(a)(ia) - payments made without deduction of TDS - when the amount is “payable” - HELD THAT:- The Hon’ble Apex Court in Palam Gas Service [2017 (5) TMI 242 - SUPREME COURT] has interpreted the issue namely the word ‘payable’ in Section 40 (a) (i-a) which would mean only when the amount is payable and not when it is actually paid. Grammatically, it may be accepted that the two words i.e. “payable” and “paid”, denote different meanings
The sole consideration taken by the forum is the judgment passed by in CIT Vs. Vector Shipping Services (P) Ltd [2013 (7) TMI 622 - ALLAHABAD HIGH COURT] which has been over-ruled by the Hon’ble Apex Court in the case of Palam Gas Service (supra), holding therein that the Allahabad High Court has not laid down good law; meaning thereby the error has been rectified by the Hon’ble Apex Court, said to be committed by the Allahabad High Court, by laying down the correct law. Therefore, applying the law laid down by the Hon’ble Apex Court in the case of Directorate of Revenue Intelligence vs. Raj Kumar Arora & Ors. [2025 (4) TMI 1179 - SUPREME COURT] will have retrospective application.
This Court, taking into consideration the fact the forum has passed the impugned order solely taking into consideration the judgment passed in the case of CIT Vs. Vector Shipping Services (P) Ltd. (supra) which has been over-ruled holding the same to be not good in law by the Hon’ble Apex Court, as such it is not rendered to be in existence, as such the impugned order requires interference.
Oder passed by the Income Tax Appellate Tribunal, Circuit Bench, Ranchi [2016 (3) TMI 1489 - ITAT RANCHI] requires interference. The matter is remitted before the forum, i.e. Income Tax Appellate Tribunal, Circuit Bench, Ranchi for fresh adjudication of the issue, taking into consideration the observation made by this Court.
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2025 (4) TMI 1626
Income deemed to accrue or arise in India - treatment of “commission income” and the amounts received by the Assessee as “subscription fee” - AO held that the commission income and the subscription fee received by the Assessee from entities in India were required to be construed as fees for technical services [FTS] and were chargeable to tax under the Act and passed the draft assessment orders - HELD THAT:- For any receipt to fall within the expression ‘fees for technical services’, it is necessary that the same be received as consideration for rendering services which are of technical nature. The expression “rendering of managerial, technical or consultancy services” must necessarily be construed in a narrow sense where such specialized services are rendered by the service provider as may be required by the service recipient. Ordinarily, the same would require human intervention. Mere access to technical database or technical literature would not constitute provision of technical services. The sale of technical texts, information or research material collated by extensive research would not constitute rendering technical services within the scope of Section 9 (1) (vii) of the Act.
In the facts of the present case, the subscription fee collected by the Assessee from various third parties is for subscription to e-magazines and content which is standardized and not specifically collected or generated for any particular entity. Thus, clearly, the subscription fee would not partake the character of a ‘fee for technical service’ within the meaning of Explanation 2 to Section 9 (1) (vii) of the Act.
It is not necessary to examine the provisions of DTAA. The same would be necessary only if the subscription fee was chargeable to tax under the normal provisions of the Act. No substantial question of law arises for consideration.
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2025 (4) TMI 1625
Validity of notices issued in light of the limitation period prescribed u/s 153(3) - Transfer pricing adjustments - HELD THAT:- As the order of the Tribunal had come to be passed after 01 April 2019, and consequently the prescription of 09 months as appearing in the principal part of sub-section (3) would have to be read as 12. When 12 months are computed from the order of 21 October 2020, it is ex facie evident that the jurisdiction and authority inhering the respondents to frame an order of assessment pursuant to a direction framed by the Tribunal would have undoubtedly come to an end on 21 October 2021 and no longer exists today.
We, consequently, allow the instant writ petition and render a declaration that any assessment that may be now proposed for AY 2010-11 would be clearly time barred and contrary to the mandate of Section 153(3) of the Act. As a consequence to the above, the notices of 06 March 2023 and 19 March 2023 are hereby quashed and set aside.
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2025 (4) TMI 1624
Estimation of income - bogus purchases - addition in respect of alleged bogus purchases based on material and statements which were admittedly not provided to the appellant for rebuttal and cross examination - HELD THAT:- After considering the decision in case of Pankaj K. Chaudhary [2023 (3) TMI 1402 - GUJARAT HIGH COURT] Tax Appeals filed by the revenue were dismissed as the question of addition of purchases made by the AO was restricted by the Tribunal to 6% was already confirmed by this Court.
Tax Appeal are also stand answered as the assessee being aggrieved by the very same order has preferred this appeal raising the questions of law.
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2025 (4) TMI 1623
Levy of penalty u/s 271(1)(c) - Disallowance of 25% of the purchase alleged of bogus and made addition after rejecting books of account u/s 145(3) - CIT(A) confirmed penalty levy.
As decided by AM - It is clear from the order of the CIT(A) that he has allowed the penalty appeal of the assessee for the assessment year 2007- 08 on the same set of facts whereas for assessment years 2008-09 and 2009-10 though the facts being same should have been allowed. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principles should be followed we find out that the ld. CIT(A) has not given any reasons as to why he has not followed his own order in the case of same assessee in spite of the fact that the issues and analogy in both the appeals are the same.
Hence, we do not concur with the findings of the CIT(A) as both the issues are fully covered by the decision of ITAT Jaipur Bench (supra) as narrated in the order of the CIT(A) and the same has been followed by him while determining the appeal of the assessee for assessment year 2007-08. The records reveal that the purchase made by the assessee alleged to have been considered as bogus and thereby the profit was estimated and confirmed in the hands of the assessee. That claim itself is not considered fully not correct and thereby the profit was added.
Thus, we get support of the decision of the apex court in the case of Reliance Petroproducts Private Limited. [2010 (3) TMI 80 - SUPREME COURT] wherein already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars.
Thus, appeals of the assessee relating to levy of penalty u/s 271(1)(c) of the Act are allowed.
As decided by JM - The undisputed fact was that the additions were made on account of bogus purchases and ultimately, the Tribunal restricted the quantum addition at 12.5% of the bogus purchases.
Therefore, it was held that there was no merit in the contention of the ld. Counsel that the profit had been estimated and the penalty had been levied on estimated profit.
Therein, facts on record showed that there were bogus purchases and only the profit element had been added which meant that the assessee had concealed the income to this extent in the garb of purchases which turned out to be bogus. Therefore, considering the facts of the case in totality, it was held that there was no hesitation in confirming the penalty so levied u/s 271(1)(c) of the Act. The appeal filed by the assessee was accordingly dismissed.
Returning to present appeals, once, the abovesaid penalty order as regards previous assessment year 2007-2008, based on similar facts was set aside, while dealing with the appeals challenging 2 penalty orders pertaining to the subsequent assessment years i.e. 2008-09 and 2009-10, Learned CIT(A) should have maintained consistency and set aside the penalty, especially when it was also not a case of 100% bogus purchases. The impugned orders passed by Learned CIT(A) deserve to be set aside.
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