M/s. Suyash Enterprises, Pune V. Deputy Commissioner of Income-tax, Circle - 2, Pune

ITA 1199/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4906 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-07-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Bogus purchase; Opportunity of being heard

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 1199 /P U N/201 8 / ASSESS MENT YEAR : 20 09 - 10 M/S. SUYASH ENTERPRISES SUYASH, S NO.255/1, 2+2 ASHIYANA PARK II, OPP. GAIKWAD PETROL PUMP, AUNDH, PUNE 411007 . / APPELLANT PAN: AA TFS1180Q VS. THE DY. COMMISSIONER OF INCOME TAX , CIRCLE 2, PUNE . / RESPONDENT / APPELLANT BY : SHRI KISHOR PHADKE / RESPONDENT BY : S HRI RAJESH GAWALI / DATE OF HEARING : 1 6 . 0 1 .201 9 / DATE OF PRONOUNCEMENT: 08 . 0 2 .201 9 / ORDE R PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT (A) , PUNE - 3 , PUNE, DATED 14 . 11 .20 1 7 RELATING TO ASSESSMENT YEAR 20 09 - 10 AGAINST ORDER PASSED UNDER SECTION 14 3(3) R.W.S. 147 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ITA NO. 1199 /P U N/20 1 8 M/S. SUYASH ENTERPRISES 2 1. THE LEARNED CIT(A) - 3, PUNE ERRED IN LAW AND ON FACTS IN SUSTAINING ADDITION OF RS.15,90 , 813 MADE BY THE LEARNED AO ON ACCOUNT OF ALLEGED BOGUS PURCHASES. 2. THE LEANED CIT(A) - 3, PUNE ERRED IN LAW AND ON FACTS IN NOT GRANTING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT. APPELLANT CONTENDS THAT SINCE PROCESS OF COMPILATION OF PAPERS WAS NOT OVER , ADJOURNMENT WAS SOUGHT FOR. LEARNED CIT(A) - 3, PUNE OUGHT TO HAVE GRANTED SOME MORE TIM E FOR SUBMISSION TO THE APPELLANT. 3. THE LEARNED C1T(A) - 3, PUNE ERRED IN LAW AND ON FACTS IN SUSTAINING THE JURISDICTION ASSUMED BY THE LEARNED AO U/S 147 OF THE ITA, 1961. LEARNED CIT(A) - 3 ERRED IN LAW IN HOLDING THE ISSUE AGAINST THE APPELLANT JUST BEC AUSE, A CONTENTION TO THIS EFFECT WAS NOT RAISED BEFORE THE LEARNED AO. 4. THE LEARNED CIT(A) - 3, PUNE ERRED IN LAW AND ON FACTS IN DISMISSING THE APPELLANT'S GROUND OF APPEAL AS REGARDS NON - GRANT OF CROSS EXAMINATION AND / OR NOT EXTENDING COPIES OF INCRI MINATING MATERIAL, JUST BECAUSE A CONTENTION TO THIS EFFECT WAS NOT RAISED BEFORE THE LEARNED AO. 5. THE LEARNED CIT(A) - 3, PUNE ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.15,90 , 813 ON ACCOUNT OF SUPPRESSION OF ALLEGED GP BY OVERRULING APPE LLANT'S CONTENTION OF DOUBLE TAXATION AND UNFAIR ADDITION, ETC. 6. THE CIT(A), PUNE ERRED IN LAW AND ON FACTS IN CONFIRMING THE GP RATE @ 39.5 % ADOPTED BY THE LEARNED AO FOR WITHOUT CONSIDERING DOCUMENT SUCH PURCHASE BILLS ALONG WITH LEDGER ACCOUNT STATEM ENT OF CONCERNED PARTIES, TRANSPORT FREIGHT RECEIPTS, OCTROI RECEIPTS, MATERIAL INWARD NOTES WHICH SUBSTANTIATE THAT SAID ALLEGED HAWALA PURCHASES ARE IN FACT, GENUINE AND BONAFIDE. 7 . WITHOUT PREJUDICE TO THE ABOVE GROUNDS APPELLANT CONTENDS THAT SIMILAR NATURE OF ADDITION WAS MADE IN AY 2011 - 12 WHEREIN THE ADDITION BEFORE THE CIT(A) WAS RESTRICTED TO 10 % . THE LEARNED CIT(A) - 3, PUNE OUGHT TO HAVE APPLIED THE SAME RATI O FOR MAKING ADDITION FOR THE YEAR UNDER CONSIDERATION. 3. THE ASSESSEE HAS RAISED SEVER AL GROUNDS OF APPEAL AGAINST ADDITION MADE ON ACCOUNT OF ALLEGED BOGUS PURCHASES BUT THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT GROUND OF APPEAL NO.7 IS PRESSED. VIDE GROUND OF APPEAL NO.7, THE ASSESSEE CLAIMS THAT ADDITION ON ACCOUNT OF BOGUS PURCHASES BE RESTRICTED TO THE EXTENT OF 10% AS DIRECTED BY THE CIT(A) IN ASSESSMENT YEAR 2011 - 12 AND AS DECIDED BY THE TRIBUNAL IN VARIOUS CASES. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS O F AUTHORITIES BELOW. ITA NO. 1199 /P U N/20 1 8 M/S. SUYASH ENTERPRISES 3 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST ADDITION TO BE MADE IN THE HANDS OF ASSESSEE ON ACCOUNT OF THE ALLEGED BOGUS PURCHASES MADE BY ASSESSEE. THE ASSES SMENT WAS REOPENED ON ACCOUNT OF CERTAIN INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT ABOUT HAWALA PARTIES, WHO HAD ISSUED BILLS WITHOUT DELIVERY OF GOODS. HOWEVER, THE TRIBUNAL IN SERIES OF CASES WITH LEAD ORDER IN M/S. CHHABI ELECTRICALS PVT. LTD. VS. DCIT IN ITA NO.795/PUN/2014, RELATING TO ASSESSMENT YEAR 2010 - 11, ORDER DATED 28.04.2017 HAS DECIDED THE ISSUE THAT WHERE THE TRAIL OF GOODS IS ESTABLISHED, THEN THE ADDITION IS TO BE RESTRICTED TO GP RATE OF 10% OVER AND ABOVE THE GP RATE DECLARED BY ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS ONLY PRESSED GROUND OF APPEAL NO.7 AND ALLOWING THE SAME, THE ASSESSING OFFICER IS DIRECTED TO RESTRICT THE ADDITION TO GP RATE OF 10% OVER AND ABOVE THE GP RATE DECLARED BY ASSESSEE. IT MAY BE POINTED OUT THAT THE SAID RATE HAS BEEN APPLIED BY THE CIT(A) IN APPELLATE ORDER FOR ASSESSMENT YEAR 2011 - 12. ACCORDINGLY, GROUND OF APPEAL NO.7 IS DECIDED AND ALL THE OTHER GROUNDS OF APPEAL ARE DISMISSED AS NOT PRESSED. THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE THUS, PARTLY ALLOWED. 6 . IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 8 TH DAY OF FEBR UARY , 201 9 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 8 TH FEBR UARY , 201 9 . GCVSR ITA NO. 1199 /P U N/20 1 8 M/S. SUYASH ENTERPRISES 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) , P UNE - 3 ; 4. THE PR. CIT - 2 , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE