JITENDRA S. MOTANI, THANE V. ACIT CIR 15(1), MUMBAI

CO 26/MUM/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7513 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 28-05-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S RAO
• Assessee Lawyers: K SHIVARAM
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ITA NO.3827/M/2011 ASSESSMENT YEAR: 2008-09 JCIT (OSD ), CIRCLE-15(1), .......... APPELLANT MUMBAI 400 007. VS. SHRI JITENDRA S. MOTANI, PROP. M/S. NITIN IMPEX, 3/35, GAUSHALA, BADA MANDIR, OPP. 2 ND PANJARAPOLE LANE, MUMBAI 400 002. PAN: AADPM 3770G ......... RESPONDENT C.O. NO. 26/M/2012 (AR ISING ITA NO. 3827/M/2011) ASSESSMENT YEAR: 2008-09 SHRI JITENDRA S. MOTANI, PROP. M/S. NITIN IMPEX,3/35, GAUSHALA, BADA MANDIR, OPP. 2 ND PANJARAPOLE LANE, MUMBAI 400 002. PAN: AADPM 3770G ......... APPELLANT VS. JCIT (OSD ), CIRCLE-15(1), .......... RESPONDENT MUMBAI 400 007. ASSESSEE BY: SHRI K. SHIVARAM, AR REVENUE BY: SHRI G.S. RAO, (CIT, DR) DATE OF HEARING: 28.5.2012 DATE OF ORDER:8.6.201 2 ORDER PER S.S. GODARA, JM: THIS REVENUES APPEAL AS WELL AS ASSESSEE'S CROSS O BJECTIONS ARISE FROM LD CIT(A)S ORDER DATED 9 TH MARCH 2011 PERTAINING TO ASSESSMENT YEAR 2008 09 PASSED U/S 250 OF THE ACT. 2 ITA NO.3827/M/2011 C.O. NO. 26/M/2012 2. THE ONLY ISSUE BEFORE US IS WHETHER LD CIT(A)S ORDER ESTIMATING GP TO THE EXTENT OF 3% OF THE TAINTED PURCHASES AS CLAIMED BY ASSESSEE IS LIABLE TO BE UPHELD OR MODIFIED AS PER RESPECTIVE CLAIMS RAISED BY BOTH PARTIES? 3. FACTS IN BRIEF OF THE INSTANT CASE ARE THAT THE ASSESSEE (IS IN BUSINESS OF EXPORTING STAINLESS STEEL UTENSILS ETC) CLAIMED EXPENSES IN I TS RETURN. THE AO ISSUED NOTICES TO CONCERNED PARTIES U/S 133 (6) OF THE ACT TO VERIFY PURCHASE DETAILS. PER AOS ASSESSMENT ORDER DATED 10/12/2010, THE NOTICES WERE RETURNED A S UNCLAIMED. THEREAFTER, THE ASSESSEE WAS ASKED TO SHOW CAUSE AGAINST THE SAID D ISALLOWANCE OF PURCHASES. HE COULD NOT SUBSTANTIATE CLAIM. THEREFORE, AO OBSERVED THAT SIN CE NO EVIDENCE IN SUPPORT HAD BEEN PRODUCED BY THE ASSESSEE, PURCHASE INSTANCES WERE HIT BY SECTION 69 (C) OF THE ACT BECAUSE NO EXPLANATION HAD BEEN TENDERED IN SUPPORT THEREOF. SO, THE AMOUNT OF RS. 2, 10, 06, 284/ WAS ADDED BACK IN THE ASSESSEE'S TOTAL IN COME. 4. IN APPEAL, THE LD CIT(A) HAS PARTLY SUSTAINED TH E ADDITION IN QUESTION @3% ONLY, BY OBSERVING THAT THERE WAS NO DISPUTE REGARDING CORRE SPONDING SALES AS WELL AS QUANTUM OF GOODS PURCHASED. ALSO NOTICED FROM THE DETAILS THAT BANK STATEMENTS IN HAND ALSO VERIFIED THE CLAIM. IN THIS REGARD, ORDER OF MUMBAI IT AT IN ASSESSEE'S OWN CASE PERTAINING TO EARLIER ASSESSMENT YEAR HAS BEEN RELIED UPON. ON MERITS, IT HAS FURTHER BEEN HELD THAT IN PURCHASE INSTANCES ALIKE THE PRESENT ONE, THERE IS NO POSSIB ILITY OF INFLATING QUANTITY OF GOODS AS IN SUCH CASES, ONLY ELEMENT IS OF A OVERSTATEMENT OF E XPENDITURE. 5. ACCORDINGLY, FOLLOWING NORM OF CONSISTENCY, ADDI TION IN QUESTION HAS BEEN MAINTAINED@3% ON ALLEGED TAINTED PURCHASES OF RS. 2 , 10, 06, 284/ I.E. RS. 6, 30, 186/ ONLY. 3 ITA NO.3827/M/2011 C.O. NO. 26/M/2012 HENCE, BOTH PARTIES ARE AGGRIEVED. 6. ARGUING FOR REVENUE, LD DR BEFORE US HAS SUBMITT ED THAT SINCE THERE WAS NO EXPLANATION AT ALL BY ASSESSEE IN SUPPORT OF PURCHA SE CLAIM IN HAND, THEREFORE THE AO HAD RIGHTLY MADE ADDITION. SO, THE IMPUGNED ORDER HAS B EEN PASSED BY LD CIT(A) MERELY BY RELYING ON THE EARLIER YEARS ORDER WITHOUT ADVERTI NG TO THE FACTS OF INSTANT CASE. THEREFORE, HE HAS PRAYED FOR ACCEPTANCE OF THE APPEAL. 7. ON THE OTHER HAND, THE LD AR WHILE CONTESTING TH AT CIT (A) ERRED IN CONFIRMING DISALLOWANCE PARTLY, HOWEVER FAIRLY ADMITTED THAT I TAT HAS UPHELD 3% DISALLOWANCE IN OTHER YEARS, WHICH WAS FOLLOWED BY CIT (A). 8. HEARD LD REPRESENTATIVES FOR BOTH PARTIES AT LEN GTH. THE NECESSARY CONTENTS OF THE PAPER BOOK HAVE ALSO BEEN PERUSED. PARTICULARLY, OR DERS PASSED BY LD COORDINATE BENCHES OF MUMBAI IT AT IN ASSESSEE'S APPEALS (SUPRA). IN O UR OPINION AS WELL, KEEPING IN MIND PECULIAR BUSINESS OF THE ASSESSEE AS WELL AS THE FA CT THAT IT IS NOT A CASE OF FALSE QUANTITY DISPUTE BUT ONLY OF INFLATED RATES OF PURCHASES WHI CH DOES NOT WARRANT REJECTION OF THE ENTIRE CLAIM, WE ALSO HOLD THAT LD CIT(A) HAS NOT C OMMITTED ANY MISTAKE IN TRADING THE NORM OF CONSISTENCY BY FOLLOWING ORDER OF MUMBAI ITAT IN EARLIER ASSESSMENT YEARS. THEREFORE, WE ALSO AFFIRM THE IMPUGNED FINDINGS AND REJECT THE APPEAL. 9. AT THE SAME TIME, WE ALSO SEE NO REASON TO ACCEP T THE GROUND RAISED IN THE CROSS OBJECTIONS (PREFERRED BY THE ASSESSEE) PARTICULARLY IN VIEW OF THE ORDERS OF THE LEARNED COORDINATE BENCHES (SUPRA). SO, THE CROSS OBJECTION S ALSO STAND DISMISSED. 4 ITA NO.3827/M/2011 C.O. NO. 26/M/2012 ORDER ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 8.6.2012. SD/- SD/- (B. RAMAKOTAIAH) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 8.6.2012 OKK COPY TO 1. JITENDRA S. MOTANI, THANE. 2. ACIT, CIR 15(1), MUMBAI. 3. THE CIT (A)-26, MUMBAI. 4. THE CIT CONCERNED. 5. THE DR J, BENCH, ITAT MUMBAI. 6. GUARD FILE. // TRUE COPY // BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI BENCHES, MUMBAI.