AKBAR ABDUL ALI, MUMBAI V. ACIT-17, MUMBAI

CO 265/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1072 (ITAT-MUMBAI)
• Duration Of Justice: 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 02-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUMAR PADMAPANI BORA
• Assessee Lawyers: N R AGARWAL
• Keywords: Bogus purchase; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI VIKAS AWASTHY, JM ITA NO. 6802/MUM/2018 ( ASSESSMENT YEAR: 2011-12) A.C.I.T.-17(1), MUMBAI ROOM NO. 117, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-400020. VS. AKBAR ABDUL ALI, FAIZ & CO., UNIT NO. 5, ALAHIBAUG, 75, A.R. STREET, MUMBAI-400009. PAN/GIR NO.AABPA 6866 F (APPELLANT ) .. (RESPONDENT ) C.O. NO. 265/MUM/2019 (ARISING OUT OF ITA NO. 6802/MUM/2018) ( ASSESSMENT YEAR: 2011-12) AKBAR ABDUL ALI, FAIZ & CO., UNIT NO. 5, ALAHIBAUG, 75, A.R. STREET, MUMBAI-400009. VS. A.C.I.T.-17(1), MUMBAI ROOM NO. 117, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-400020. PAN/GIR NO. AABPA 6866 F (APPELLANT ) .. (RESPONDENT ) REVENUE BY SHRI KUMAR PADMAPANI BORA (SR.DR) ASSESSEE BY SHRI N.R. AGARWAL (AR) DATE OF HEARING 12/12/2019 DATE OF PRONOUNCEMENT 19/12/2019 / O R D E R PER: R.C. SHARMA, A.M. THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTIO N FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-55, MUMBAI DATED 04/09/2018 FOR THE A.Y. 2011-12 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE A CT). ITA NO. 6802/MUM/2018 & CO 265/MUM/2019 ACIT VS AKBAR ABDUL ALI 2 2. IN THIS APPEAL, THE REVENUE IS AGGRIEVED BY THE ACTION OF THE LD. CIT(A) FOR REDUCING THE PROFIT ESTIMATED ON BOGUS P URCHASES AT 12.5% FROM 15% WHEREAS THE ASSESSEE IN THE C.O. IS AGGRIE VED FOR UPHOLDING THE ADDITION ON ACCOUNT OF BOGUS PURCHASES ESTIMATE D PROFIT AT 12.5%. 3. AT THE OUTSET, THE LD AR OF THE ASSESSEE PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2009-10 DATED 30/10/2015 WHEREIN UNDER SIMILAR FACTS AND CIRCUMST ANCES, THE ADDITION MADE ON ACCOUNT OF BOGUS PURCHASES WAS DELETED BY T HE TRIBUNAL. 4. ON THE OTHER HAND, THE LD SR.DR HAS RELIED ON TH E ORDER PASSED BY THE A.O. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOU ND FROM THE RECORD THAT TO PROVE THE GENUINENESS OF PURCHASES, THE ASS ESSEE HAS FILED DETAILS OF CHART OF MOVEMENT OF GOODS SO PURCHASED, THEIR INVOICE WITH LR, BANK STATEMENT FOR PAYMENT, SALES INVOICE ETC.. IT WAS ALSO SUBMITTED THAT ALL THE SUPPLIERS WERE REGISTERED UN DER SALES/VAT LAWS WHICH WERE DISPLACED ON THEIR INVOICES. THE ASSESSE E HAS ALSO VERIFIED THE REGISTRATION NUMBERS FROM SALES TAX DEPARTMENT, WHICH WAS ALSO FOUND TO BE CORRECT. AS PER THE LD AR, THE ASSESSEE , AS A PRUDENT BUSINESS MAN, HAD RECEIVED GOODS, MADE PAYMENT BY A CCOUNT PAYEE CHEQUES AND PURCHASED AND SOLD THE MATERIAL AGAIN F OR WHICH PAYMENTS ITA NO. 6802/MUM/2018 & CO 265/MUM/2019 ACIT VS AKBAR ABDUL ALI 3 WERE RECEIVED. ALL THESE FACTS WERE ACCEPTED BY THE A.O., ACCORDINGLY, NO ADDITION IS WARRANTED. 6. FROM THE RECORD WE ALSO FOUND THAT EXACTLY SIMIL AR ISSUE OF BOGUS PURCHASES WAS BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2009-10 AND VIDE ORDER DATED 30/10/2015, THE TRIBUN AL AFTER HAVING THE FOLLOWING OBSERVATION HAVE DELETED THE ENTIRE ADDIT ION SO MADE BY THE A.O. AS UNDER: 11. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF BO TH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE ARE OF THE CONSIDERED VIEW THAT SINCE THE TRANSACTION HAS BEEN MADE BY THE ASS ESSEE WITH THE RESPECTIVE PARTIES THROUGH A/C PAYEE CHEQUES AND HA S PLACED ON RECORD PURCHASE BILLS, DELIVERY CHALLANS AND TRANSPORT REC EIPTS. THE ASSESSEE HAS ALSO PROVED AND PLACED ON RECORD THE RESPECTIVE SALE TAX REGISTRATION NUMBERS OF ALL THE PARTIES. THEREFORE, THIS CLEARLY SHOWS THAT THE GOODS HAD ACTUALLY BEEN PURCHASED AND RECE IVED BY THE ASSESSEE, THEREFORE, THESE PURCHASES SHOULD NOT HAV E, BY ANY STRETCH OF IMAGINATION, BE TREATED AS BOGUS PURCHASES. NOTHING CONTRARY HAS BEEN BROUGHT TO RECORD TO SHOW THAT THESE INVOICE WERE S ELF-MADE OR FABRICATED AND BY PLACING ON RECORD ALL THE AFOREME NTIONED DOCUMENTS, THE INITIAL ONUS HAS ALREADY BEEN SUFFICIENTLY DISC HARGED BY THE ASSESSEE AND ONCE THE INITIAL ONUS IS DISCHARGED THEN AUTOMA TICALLY ONUS SHIFTS UPON THE OTHER PARTY TO REBUT AND PROVE THE DOCUMEN TS TO BE FORGED OR FABRICATED BUT IN THIS RESPECT NO EVIDENCE HAS BEEN LED, THEREFORE, KEEPING IN VIEW THE AFOREMENTIONED CITATION AND RES PECTFULLY FOLLOWING THE SAME, WE ACCEPT THE GROUND NO. 1 IN FAVOUR OF A SSESSEE AND SET ASIDE THE ORDER OF CIT(A) THEREBY DISALLOWING 15% O F THE PURCHASES. ITA NO. 6802/MUM/2018 & CO 265/MUM/2019 ACIT VS AKBAR ABDUL ALI 4 HENCE, THE PRESENT GROUND OF APPEAL OF THE ASSESSEE IS ACCEPTED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDE R CONSIDERATION ARE PARI MATERIA, RESPECTFULLY FOLLOWING THE ORDER OF T HE TRIBUNAL DATED 30/10/2015 IN ASSESSEES OWN CASE, WE DELETE THE AD DITION SO MADE BY THE A.O. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D AND CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DECEMBER, 2019. SD/- (VIKAS AWASTHY) SD/- (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 19/12/2019 *RANJAN COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//