SHRI RAJESHKUMAR P. TRIVEDI, MUMBAI V. INCOME TAX OFFICER - 19(3)(1), MUMBAI

ITA 1129/MUM/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0755 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 27-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR KESHRI
• Keywords: Bogus purchase; Onus to prove
• Section: 133(6); 147; 148; 2

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL SMC BENCH MU MBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 1129/MUM/2018 (ASSESSMENT YEAR 2011-12 ) SHRI RAJESHKUMAR P. TRIVEDI 301, AMRUT NAGAR, NEAR JAIN MANDIR ROAD, VIRAR (W), THANE, MUMBAI-401303. PAN: ACGPT6055H VS. ITO - 19(3)(1) MATRU MANDIR, ROOM NO. 202, TARDEO ROAD, MUMBAI-400007. APPELLANT RESPONDE NT APPELLANT BY : NONE RESPONDENT BY : SHRI AJAY KUMAR KESHRI (DR) DATE OF HEARING : 04.10.2018 DATE OF PRONOUNCEMEN T : 04.10.2018 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME -TAX ACT IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-53, MUMBAI DATED 15 .12.2017 FOR ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HEREI NAFTER REFERRED TO AS LD. CIT (A)] HAS ERRED IN UPHOLDING THE ORDER OF LD. ASSESSING OFFICER AND DISALLOWING THE PURCHASE TO THE EXTENT OF 12.5% OF RS. 29,72,130/- AMOUNTING TO RS. 3,71,516/- ON ACCOUNT OF PURCHASE FROM NON GENUINE PURCHASE PARTIES. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS EN GAGED IN THE BUSINESS OF TRADING IN FERROUS AND NON FERROUS METALS. THE ASSE SSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 24.09.2009 DE CLARING INCOME OF RS. 3,12,447/-. THE RETURN OF INCOME WAS PROCESSED AND ACCEPTED UNDER ITA NO. 1129 MUM 2018-SHRI RAJESHKUMAR P. TRIVEDI 2 SECTION 143(1) OF THE ACT. THE ASSESSMENT WAS RE-OP ENED UNDER SECTION 147 ON 24.09.2014. THE ASSESSMENT WAS RE-OPENED ON THE BASIS OF INFORMATION RECEIVED FROM SALE TAX DEPARTMENT, GOVE RNMENT OF MAHARASHTRA THAT SOME OF THE DEALERS WERE INDULGING IN PROVIDING ACCOMMODATION ENTRY BY ISSUING BOGUS BILLS WITHOUT SUPPLY OF ANY GOODS OR MATERIAL. THE ASSESSEE WAS ALSO ONE OF THE BENEF ICIARIES WHO HAS AVAILED ACCOMMODATION ENTRY FROM THREE PARTIES AGGREGATING TO RS. 29,72,130/-. NOTICE UNDER SECTION 148 DATED 09.07.2015 WAS SERVE D UPON THE ASSESSEE. THE ASSESSEE WAS SUPPLIED WITH THE REASONS FOR RE-O PENING. THE ASSESSING OFFICER PROCEEDED FOR RE-ASSESSMENT. DURING THE RE- ASSESSMENT PROCEEDING, THE ASSESSEE WAS ASKED TO FURNISH THE S UPPORTING DOCUMENTARY EVIDENCES TO SUBSTANTIATE THE PURCHASES FROM ALL TH REE PARTIES. THE ASSESSEE FURNISHED THE ADDRESS OF ALL THREE PARTIES. THE ASS ESSING OFFICER ISSUED NOTICE UNDER SECTION 133(6) TO ALL THE PARTIES AT T HE ADDRESSES PROVIDED BY ASSESSEE. THE NOTICES SENT BY ASSESSING OFFICER WER E RETURNED BACK WITH THE REMARK NOT KNOWN OR LEFT. THE ASSESSEE WAS ASKED TO PROVE THE GENUINENESS OF THE PURCHASES. THE ASSESSEE FURNISHE D THE COPY OF BANK STATEMENT AND THE DETAILS OF PURCHASES AND THE CORR ESPONDING SALES. THE CONTENTION OF THE ASSESSEE AND THE EVIDENCE FURNISH ED BY ASSESSING OFFICER WAS NOT ACCEPTED BY ASSESSING OFFICER HOLDI NG THAT THE ONUS TO PROVE THE GENUINENESS OF PURCHASES WERE UPON THE AS SESSEE. THE ASSESSEE FILED MERELY EVIDENCE THAT PURCHASES WERE MADE THRO UGH ACCOUNT PAYEE ITA NO. 1129 MUM 2018-SHRI RAJESHKUMAR P. TRIVEDI 3 CHEQUE, WHICH IS NOT CONCLUSIVE PROOF WHEN GENUINEN ESS OF TRANSACTION IS IN DOUBT. THE ASSESSING OFFICER ON THE BASIS OF DEC ISION OF HONBLE GUJARAT HIGH COURT IN CIT VS. SIMIT P. SHETH (356 I TR 451 (GUJ.) DISALLOWED 12.5% OF THE ALLEGED NON-GENUINENESS PUR CHASES BEING PROFIT EARNED FROM SUCH PURCHASES. ON APPEAL BEFORE THE LD . CIT(A), THE ACTION OF ASSESSING OFFICER WAS CONFIRMED. THUS, FURTHER A GGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT A PPEAL BEFORE US. 3. NONE APPEARED ON BEHALF OF ASSESSEE DESPITE THE NO TICE OF HEARING SENT THROUGH RPAD IS RETURNED BACK AS UNCLAIMED. THEREFO RE, WE LEFT NO OPTION EXCEPT TO HEAR THE SUBMISSION OF LD. DR FOR THE REV ENUE AND TO DECIDE THE CASE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF LOWER AUTHORITIES. T HE LD. DR FOR THE REVENUE FURTHER SUBMITS THAT INVESTIGATION WING OF INCOME-TAX DEPARTMENT AND THE SALE TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA MADE A FULL-FLEDGED ENQUIRY, THE PARTIES FROM WHOM THE ASSESSEE HAS SHOWN THE PURCHASES ARE BOGUS HAWALA DEALERS. THE H AWALA DEALERS WERE ENGAGED IN ISSUING THE BOGUS BILLS WITHOUT DELIVERY OF ANY MATERIAL OR GOODS. THE ASSESSEE IS ONE OF THE BENEFICIARIES WHO HAVE AVAILED ACCOMMODATION BILL ONLY TO INFLATE THE EXPENSES AND TO BRING OUT THE PROFITABILITY IN ORDER TO AVOID THE TAX. THE LD. DR FOR THE REVENUE FURTHER SUBMITS THAT THE LOWER AUTHORITY HAS ALREADY GIVEN SUFFICIENT RELIEF TO THE ASSESSEE. THE ASSESSEE IS NOT ENTITLED FOR ANY FURT HER RELIEF. ITA NO. 1129 MUM 2018-SHRI RAJESHKUMAR P. TRIVEDI 4 4. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE N OTED THAT THE ASSESSING OFFICER HAS IDENTIFIED THE DISPUTED/HAWAL A PURCHASES FROM THREE PARTIES OF RS. 29,72,130/-. HOWEVER, WHILE PASSING THE ASSESSMENT ORDER, THE ASSESSING OFFICER ADDED ONLY 12.5% OF SAID PURC HASES AS ESTIMATED PROFIT EARNED ON SUCH PURCHASES. THE ASSESSING OFFI CER DISALLOWED THE PURCHASES TO THE EXTENT OF PROFIT ELEMENT EMBEDDED IN THE ALLEGED BOGUS PURCHASES ON THE BASIS OF DECISION OF HONBLE GUJAR AT HIGH COURT IN SIMIT P SHETH(SUPRA). THE LD. CIT(A) CONFIRMED THE ACTIO N OF ASSESSING OFFICER. WE HAVE NOTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF FERROUS & NON-FERROUS METAL. THEREFORE, CONSIDERING THE NATURE OF BUSINESS ACTIVITIES OF THE ASSESSEE, WE DO NOT FIND ANY ILLE GALITY OR INFIRMITY IN THE ORDER PASSED BY LOWER AUTHORITIES. NO DOCUMENTARY E VIDENCE OR ANY SUBMISSION EXPLAINING THE FACT IS FILED BY ASSESSEE . THEREFORE, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF LOWER AUT HORITIES. HENCE, GROUND OF APPEAL RAISED BY ASSESSEE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/10/2018. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 04.10.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE ITA NO. 1129 MUM 2018-SHRI RAJESHKUMAR P. TRIVEDI 5 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR SMC BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI