TaxTMI 
TaxTMI 
TaxTMI 
2017 (2) TMI 1104
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....ro Products (2010) 3 Taxman.com47 without appreciating the fact that the appellant had evaded the tax by raising bogus bills of purchases and as such the facts are different from the facts of the above case law." (III) "The appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored." (IV) "The appellant craves leave to amend or alter any ground or add a new ground". 2. The solitary issue to be decided by us in this appeal is whether Ld. CIT (A) was justified in deleting the penalty levied by the AO. The brief backgrounds of this case is that in this case during the course of assessment proceedings the AO made addition on the purchases made from one M/s Centurian Sales Corporation to the tune of Rs. 16,75,677/- by treating it as bogus. Then, the AO initiated penalty u/s. 271 (1) (c) and issued show cause notice for imposition of penalty with respect to the same. In reply to the show cause notice issued by the AO for the imposition of penalty the assessee submitted before the AO that: "We have to draw your attention that we have produced all the evidence for purchase and payment made by account payee cheque ....
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....see and examined the evidences and held that penalty was not leviable in this case and therefore he deleted the penalty. Now, being aggrieved, Revenue filed before the Tribunal. 4. During the course before us, Mr. M.C. Omi Ningshen, Ld. DR appearing on behalf of the Revenue vehemently supported the penalty order passed by the AO and argued that since it is a case of bogus purchases, penalty should have been confirmed by Ld. CIT (A). Thus, he requested for reversing the action of Ld. CIT (A) and confirming the penalty levied by the AO @ 200% of tax sought to be evaded by the assessee. 5. Per contra, Ms. Chandani Patel, Ld. Counsel of the assessee vehemently supported order of the Ld. CIT (A). It was submitted by her that the assessee submitted in detail that exhaustive evidences were filed in support of claim of purchase made by the assessee before the lower authorities. However, the AO alleged that purchases were bogus. But the allegations of the AO were without support of any adverse material having been brought on record. Neither any material was provided to the assessee indicating that purchases made by the assessee were bogus nor any opportunity of cross examination was given....
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....s led to additions in hands of the appellant. It cannot strictly be construed as a case of concealment on part of appellant since there is no positive finding to that effect. In light of the above decision the appeal of the appellant is allowed." 7. We have carefully examined the findings recorded by the Ld. CIT(A). With the assistance of the parties, it was noted by us that assessee had filed ample evidences to discharge its primary onus. Our attention was drawn upon the invoice as well as delivery challans issued by the supplier establishing delivery of the goods purchased by the assessee. Our attention was also drawn upon the weighment slip wherein particulars of the vehicle number and weight of the material purchased was mentioned. Our attention was also drawn upon Quality Inspection Report issued by M/s Bhagwati Steel Cast Ltd., wherein chemical composition and mechanical properties purchased by assessee are narrated. This report not only contained particulars about the quality of product conformed to the Standard Rolling and Mass Tolerances but also confirmed the fact that the material was supplied to the assessee. Our attention was also drawn upon the bank statement establ....
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....income are enabling provisions for making certain additions, where there is failure by the assessee to give an explanation or where the explanation is not to the satisfaction of the AO. However, the addition made on this count would not automatically justify imposition of penalty under s. 271(1)(c) by recourse only to Explanation 1 below s. 271(1)(c). In order to justify the levy of penalty, two factors must co-exist, (i) there must be some material or circumstances leading to the reasonable conclusion that the amount does represent the assessee's income. It is not enough for the purpose of penalty that the amount has been assessed as income, and (ii) the circumstances must show that there was animus i.e., conscious concealment or act of furnishing of inaccurate particulars on the part of the assessee. The Explanation has no bearing on factor No. 1 but it has bearing only on factor No. 2. The Explanation does not make the assessment order conclusive evidence that the amount assessed was in fact the income of the assessee. No penalty can be imposed if the facts and circumstances are equally consistent with the hypothesis that the amount does not represent concealed income as with th....