TMI Blog2017 (9) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... eviability of penalty u/s 271(1)(c). The assessee be allowed to raise all contentions both on merits and on law before the AO which are kept open, which shall be adjudicated de-novo by the AO on merits in accordance with law. - I.T.A. No. 5367/Mum/2016 - - - Dated:- 25-9-2017 - Shri Saktijit Dey, Judicial Member And Shri Ramit Kochar, Accountant Member Assessee by : None Revenue by : Shri Vidhyadhar, D.R. ORDER Per Ramit Kochar, Accountant Member This appeal, filed by the assessee, being ITA No. 5367/Mum/2016, is directed against the appellate order dated 03.06.2016 passed by learned Commissioner of Income Tax (Appeals)- 26, Mumbai (hereinafter called the CIT(A) ), for assessment year 2010-11, appellate proceedings before learned CIT(A) has arisen from the penalty order dated 30.09.2013 passed by learned Assessing Officer (hereinafter called the AO ) u/s 271(1)(c) of the Income-tax Act, 1961 (hereinafter called the Act ) . 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called the tribunal ) read as under:- 1. The Ld. CIT(A) has erred in confirming the action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received and utilized for the purposes of business of the assessee. It was submitted that the list published by the Maharashtra Sales Tax Authorities was subject to objections raised by the parties . Thus, it was not confirmed that the suppliers were not genuine, hence, the disallowance was stated by the assessee as made by the AO to be itself incorrect and the assessee prayed that penalty be not levied on the assessee u/s 271(1)(c). The A.O. rejected the contentions of the assessee and observed that the assessee has not proved the actual delivery of goods from the purchasers and also the assessee could not prove utilization of material reflected in the books of accounts of the assessee. The AO observed that no supporting documents pertaining to the delivery of goods such as delivery challan, place of delivery, lorry receipt were submitted by the assessee and merely bills issued by the said party was submitted. Thus, the A.O. concluded that the assessee has furnished inaccurate particulars of income on account of addition made in the assessment order to the tune of ₹ 27,72,702/- on account of bogus purchases and the AO levied penalty of ₹ 8,56,765/- u/s 271(1)(c) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchases have been certainly made , but that the bills were received from one vendor although the supplies were received from another party, through some intermediary. It was also observed by learned CIT(A) from perusal of assessment records that the assessee never asked for any cross examination during assessment proceedings or penalty proceedings. It was also observed that the assessee has failed to prove the delivery of goods. No documents have been furnished with respect to delivery of goods such as delivery challans, lorry receipts etc nor utilization/consumption of material stood proved by the assessee . The learned CIT(A) relied upon decision of Hon ble Supreme Court in the case of Mak Data Private Limited reported in 1 SCC 674. The learned CIT(A) observed that the assessee has only given name of the suppliers and amount of purchases but has not given the addresses of these four suppliers from whom purchases to the tune of ₹ 27,72,702/- were allegedly made by the assessee. It was observed by learned CIT(A) that the other details sought by the AO w.r.t. these purchases were also not furnished by the assessee. The assessee has not furnished copies of delivery challans, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/- The assessee contended that the purchases were genuine purchases and the material so purchased had been utilized/consumed for assessee s business. The assessee could not furnish details of movement of goods such as delivery challans, lorry receipt which could evidence material from the place of sellers to the assessee s premises. The assessee also could not produce any evidences for consumption/ utilization of the said material . The assessee could not produce evidences of making payment for these alleged bogus purchases through account payee cheques. The said four parties have deposed before Maharashtra Sales tax Authorities that the said parties were merely issuing bogus accommodation bills without supplying any material and were alleged hawala operators. The said information was obtained by the AO from web site of Maharashtra Sales Tax department. It is pertinent to mention here that no independent enquiry has been made by the A.O. with these parties as is emerging from records. In-fact the assessee also did not discharge its primary onus as it did not supply addresses of these four parties to the AO and could not rebut the incriminating information wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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