ITO 32(3), MUMBAI V. MEHUL JAYANTILAL SHAH, MUMBAI

ITA 1316/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9805 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 11-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESHPANDE
• Keywords: Bogus purchase; Tax effect
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES K , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 1316 /MUM/20 1 6 ASSESSMENT YEAR: 2009 - 10 THE INCOME TAX OFFICER - 32(2)(3), ROOM NO. 305, 3 RD FLOOR, C - 11, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 VS. SHRI MEHUL JAYANTILAL SHAH, 701, RATNADEEP BUILDING, ROAD NO. 5, DAULAT NAGAR, BORIVALI (E), MUMBAI 400066 PAN: AWZPS2492P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAURABH DESHPANDE ( DR) RESPONDENT BY : SHRI MANDAR VAIDYA (AR) DATE OF HEARING: 27/07 /201 7 DATE OF PRONOUNCEMENT: 2 7 / 0 7 /201 7 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINS T ORDER DATED 29/01 /2016 PASSED BY THE COMMISSIONER OF INCOME TAX ( APPEALS ) - 44 , MUMBAI , FOR THE A S S ESSMENT YEAR 2009 - 10 , WHEREBY THE LD. CIT (A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S 147 OF TH E INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (APPEAL S ) ON THE FOLLOWING EFFECTIVE GROUNDS: - 2 ITA NO. 1316 /MUM/2016 ASSESSMENT YEAR: 2009 - 10 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED I N RESTRICTING ADDITION TO RS. 6,54,190/ - (@ 21.09% OF RS. 31,01,898/ - ) U/S 69C OF THE IT ACT ON ACCOUNT OF BOGUS PURCHASES AS AGAINST ADDITION OF RS. 31,01,898 MADE BY THE AO WITHOUT APPRECIATING THAT THE ASSESSE HAS NOT PRODUCED ANY COGENT EVIDENCE TO SUB STANTIATE THE FACT THAT HE HAD TAKEN ACTUAL DELIVERY OF GOODS PURCHASED FROM THE PARTIES AND THAT THE NOTICES UNDER SECTION 133 (6) ISSUED TO THE PARTIES, FROM WHOM, THE ALLEGED BILLS WERE RECEIVED WERE RETURNED UNDELIVERED BY THE POSTAL AUTHORITIES WITH T HE REMARK NOT AVAILABLE AT THIS ADDRESS AND THE ASSESSEE HAS ALSO FAILED TO PRODUCE THE PURCHASE PARTIES BEFORE THE A.O. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN RELYING UPON THE JUDGMENT IN THE CASE OF C IT VS NIKUNJ ENTERPRISES 373 ITR 619 AND SARSWATHI OIL TRADERS VS CIT 254 ITR 259 (SC) WITHOUT APPRECIATING THAT THE FACTS INVOLVED IN THE APPELLANTS CASE ARE DIFFERENT FROM THE FACTS OF THE ABOVE CASE LAWS. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW RS.10,00,000/ - . HENCE, AS PER THE CBDT CIRCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRESENT APPEAL IS NOT MAINTAINABLE. 4. THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT IN DEPARTMENTS APPEAL IS BELOW RS.10 LAKHS, WE FIND THAT THE ISSUE RAISED IN APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE CIRCULAR. SINCE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID THAT THE INSTRUCTION WILL APPLY RETROSPECTIV ELY TO ALL THE PENDING APPEALS; THE PRESENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMISS THE SAME IN LIMINE . 3 ITA NO. 1316 /MUM/2016 ASSESSMENT YEAR: 2009 - 10 IN THE RESULT, APPEAL FILED BY THE REVENUE FOR A SSESSMENT YEAR 2009 - 2010 IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JULY , 2017 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 28 / 0 7 / 2017 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI