2024 (5) TMI 103

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....Income tax Act, 1961 (in short, 'the Act') of Rs. 1,79,26,600/- and Rs. 2,27,98,500/- in order dated 30.03.2019 for the Assessment Years (AY) 2008-09 and 2009-10 respectively. In both appeals, the facts are common and grounds of appeal by the Revenue are similar except variance of amount. Hence, with the consent of the parties, both appeals are clubbed and heard together and are decided by the common and for sake of convenience and brevity. Grounds of appeals raised by the Revenue in ITA No.788/SRT/2023 for AY. 2009-10 treated as "lead" case are as under: "1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the penalty levied by the AO u/s 271(1)(c) of the I.T. Act, 1961 of Rs. 2,27,98,....

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....nd and/or withdraw any grounds of appeal either before or during the course of hearing of the appeal." 2. The facts of the case in brief are that the assessee filed his return of income for AY. 2009-10 on 01.07.2009 declaring total income of Rs. 1,76,440/-. Subsequently, assessment order under section 143(3) r.w.s. 147 of the Act was passed on 28.03.2016 determining total income at Rs. 13,46,35,000/- after making addition of Rs. 13,44,88,700/- on account of bogus purchases as accommodation entry. The penalty proceedings under section 271(1)(c) of the Act were initiated for furnishing inaccurate particulars of income and concealment of income. In the assessment order, the Assessing Officer made disallowance of Rs. 13,44,88,700/-, being @ ....

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....icer has been further reduced by the Ld. CIT(A) and the Tribunal. In view of the facts, the Ld. CIT(A) observed that it cannot be said that there was "non-disclosure of particulars nor filing of inaccurate particulars by the appellant". He agreed with the contention of the appellant that additions were based on estimation and as such penalty cannot be levied. He has relied on the decisions of the Mumbai Tribunal in cases of V. K. Ispat vs. ITO, in ITA Nos.2325 & 2326/Mum/2022, dated 24.01.2023, Mukesh Sahaligram Sharda vs. ITO, in ITA No.1907 & 1908/Mum/2021, dated 22.02.2023 and PCIT vs. M/s Fancy Diamond India Pvt. Ltd., in ITA No.5384/Mum/2019, dated 17.06.2022. Following the above decisions, he has deleted the penalty levied by the AO u....

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.... 12.5% by the Ld. CIT(A). On further appeal by the Revenue as well as the assessee, the Tribunal in its consolidated order in 19 Appeals / cross-appeals in ITA Nos.1519 & 1520/Ahd/2017, dated 18.07.2022 decided the issue and allowed further relief to the appellants by the reducing the estimated addition from 12.5% to 6% of the disputed purchases. The case of the appellant is included in this bunch of appeals in ITA No. 245 & 246/SRT/2017 (AY. 2008-09 & 2009-10), dated 18.07.2022. The relevant portion is added para nos. 27, 28, 29, 30 and 31 of the consolidated order. 7. It is clear from the order of the Tribunal that the Tribunal restricted the addition of bogus purchase to the extent of 6% of the disputed purchases. On examining the fac....