DCIT CIR 6(3)(1), MUMBAI V. FACO FASTNERS P.LTD, MUMBAI

ITA 1641/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8913 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 09-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Assessee Lawyers: KARTIK MEHTA
• Keywords: Bogus purchase
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN , JM ITA NO. 1641 / MUM/20 1 7 ( ASSESSMENT YEAR : 2010 - 11 ) DCIT CIR 6(3)(1) R.NO.506, 5 TH FLOOR, AAYAKAR BHAVAN M.K.ROAD, MUMBAI 400 020 VS. M/S. FACO FASTNERS PVT. LTD., 196, MUTTON STREET NULL BAZAR, MUMBAI 400 003 PAN/GIR NO. AABCF2490D APPELLANT ) .. RESPONDENT ) REVENUE BY MS. ARJU GARODIA ASSESSEE BY SHRI KARTIK MEHTA DATE OF HEARING 24 / 08 /201 7 DATE OF PRON OUNCEME NT 26 / 10 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - 12, MUMBAI DATED 16/12/2016 FOR THE A.Y.2010 - 11 IN THE MATTER OF ORDER PASSED U/S.143(3) R.W.S. 147 OF THE IT AC T. 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE: - 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 55,84,208/ - ADDED U/S 69C OF THE ACT, ON ACCOUNT OF BOGUS PURCHASE FROM NI NE PARTIES'. 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO FURNISH VARIOUS DETAILS CALLED FOR BY THE AO, THAT IS PARTIES FROM WHOM THE ABOVE AMOUNT OF PURCHASE WAS MADE WERE GENUINE AND EXISTED AND WERE NOT MERE ENTRY PROVIDERS, AS RECORDED BY THE A.O. IN PARA 4.8 OF THE ORDER.' 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY ITA NO. 1641/MUM/2017 M/S. FACO FASTNERS PVT. LTD., 2 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. ON THE BASIS OF INFORMATION FROM SALES TAX DEPARTMENT, AO REOPENED ASSESSMENT AND MADE ADDITION OF RS.55,84,208/ - U/S.69C ON ACCOUNT OF BOGUS PURCHASES. 5. BY THE IMPUGNED ORDER , CIT(A) DELETED THE ADDITION AFTER OBSERVING AS UNDER: - IT IS SEEN THAT AO HAS ERRED ON THE FACTS OF THE CASE IN MAKING 100% ADDITION OF RS.55,84,208/ - ON ACCOUNT OF BOGUS PURCHASES. THE CASE HAS BEEN REOPENED ON THE BASIS OF INFORMATION RECEIVED FROM DGI T (INV) AND MAHARASHTRA SALES TAX DEPARTMENT. I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND THE APPELLANT'S WRITTEN SUBMISSION. DURING THE COURSE OF APPELLATE HEARING, THAT THE APPELLANT SUBMITTED ALL LEDGER ACCOUNTS OF THE CONCEITED PARTIES, SALE AND PURCHASE BILLS, DELIVERY CHALLANS, DETAILS OF TRANSPORTATION, THE SUPPORTING VOUCHERS AND COPY OF BANK STATEMENTS. IT IS SEEN THAT NOTHING HAS BEEN BROUGHT OUT ON RECORD BY THE A.O. TO PROVE THAT THE PURCHASES ARE BOGUS. THE A.O. IS ALSO IGNORING, THE FAC T THAT CORRESPONDING SALES HAVE BEEN REFLECTED IN THE BOOKS AND A.O. HAS NOT NEGATED THIS FINDING. RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL DECISIONS OF HON. APEX COURT, HON. GUJARAT HIGH COURT, HON. MUMBAI HIGH COURT AND HON. MUMBAI IT AT WHEREIN THE HON. HIGH COURTS, HON. IT AT AND HON. SUPREME COURT HAS OPINED AND DELETED THE ADDITIONS IN CASES OF BOGUS PURCHASES : 1. MUNJAL SALES CORPN VS CIT (2008) 168 TAXMAN 43 (SC) 2. CIT VS RELIANCE UTILITIES & POWER LTD. (2009) 178 TAXMAN 135 (BOM) 3. YATIS H TRADING CO. (P) LTD. VS. ACIT (2011) 129 ITD 237/9 TAXRNANN.COM 164 (MUM) 4. ITO VS STRIDES ARCOLAB LTD. (201 2 ) 138 ITD 323/24 TAXMANN.COM 89(MUM) 5. MORGAN STANLEY INDIA SECURITIES P. LTD. VS ACIT IN ITA NO. 5072/M/2005 IT AT, MUMBAI. 6. FOUR DIMENSIONS SECURITIES (INDIA) LTD. VS ADDL.CIT IN ITA NO. 0693/M/2011ITAT, MUMBAI 7. KODAK INDIA (P) LTD. VS ADDL CIT (IT APPEAL NO. 7349/MUM/2012 DATED 30/4/2013) 8. A CIT 11(2) VS. IQBAL M. CHAGALA, PALLONI MANSION' ITA NO. 877/MUM/20 13, ITAT, MUMBAI ITA NO. 1641/MUM/2017 M/S. FACO FASTNERS PVT. LTD., 3 9. HON. MUMBAI HIGH COURT DECISION IN THE CASE OF BABULAL C. BORANA VS ITO (2006) 282 ITR 251. 10. HON. GUJARAT HIGH COURT DECISION IN CASE OF CIT VS MX BROS (1987) 163 ITR 249 11. HON. GUJARAT HIGH COURT DECISION IN CASE OF CIT VS NANG ALIA FABRICS P. LTD. (2014) 220 TAXMAN 17 12. HON. MUMBAI ITAT JUDGMENT DATE 17.6.2016 IN THE CASE OF M/S. OM SHREE INTERNATIONAL VS ACIT IN ITA NO. 3304/M/2014 AND ITA NO. 4575/M/2012. 13. KISHANCHAND CHELARAM VS. CIT - 125 ITR 713 - SC. 14. H.R. MEHTA VS ACIT IN ITA NO.58 OF 2001 (BOM) 15. C IT VS. NIKUNJ EXIMP ENTERPRISES P VT . LTD. [372 ITR 619 (BOM)2015] 16. ACIT VS. RAMILA PRAVIN SHAH (ITA I F O.5246/MUM/2013) 17. ACIT VS.TRISTAR JEWELLERY EXPORTS PI. LTD. (ITA NO.7593/MUM/20LL) 18. ITO VS. D EEPAK POPATLAL GALA (I A NO.5920/MUM/2013 AND ITA NO.6203/MUM/2013) 19. DCIT VS.RAJIV G.KALATHIL (ITA NO.6,27/MUM/2012/RGR 20. RAMESH KUMAR & CO. VS. AC I T IN ITA NO.2959/MUM/2014 DT.28.11.2014. 21. SHRI.GANPATRAJ A.SANGHAVI VS. A C IT. I N ITA NO.2826/MUM/2013 DT.5.11.2014. 22. WEST COAST PAPER MILLS VS.JCIT[100 T TJ 833(MUM)] 23. ITO VS. A.CEXPORT[ 1 3DTR98(MUM) 24. UNITEX PRODUCTS [22 SOT 429(MUM)], 25. TELETRONICS DEALING SYSTEM PVT. LTD. 53 TAXMANN.COM20(MUM)]. 26. FREE INDI A ASSURANCE SERVICES LTD. VS. DCIT(132 ITD 60) MUMBAI TRIBUNAL. 27. BALAJI TEXTILES INDUSTRIES PVT. LTD.[49 ITD 177 (MUM).] THEREFORE, SINCE THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE HERE IS IDENTICAL TO THE ABOVE MENTIONED JUDICIAL ORDERS , GROUND OF APPEAL NO.2 IS ALLOWED. 6. REVENUE IS IN APPEAL BEFORE US. 7. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE ENTIRE ADDITION MADE BY THE AO HAS BEEN DELETED BY CIT(A) BY STATING THAT THE FACTS AND CIRCUMSTANCES ARE SIMILAR TO THE FACT S DISCUSSED BY VARIOUS JUDICIAL PRONOUNCEMENTS. HOWEVER, CIT(A) NEITHER NARRATED THE FACTS OF THE ASSESSEES CASE NOR COMPARED THE SAME WITH THE FACTS OF THE VARIOUS JUDICIAL PRONOUNCEMENTS RELIED ON BY HIM. KEEPING IN VIEW THE TOTALITY OF ITA NO. 1641/MUM/2017 M/S. FACO FASTNERS PVT. LTD., 4 FACTS AND CIRCUM STANCES OF THE CASE AND THE GP RATE SHOWN BY ASSESSEE, WE UPHOLD THE ADDITION TO THE EXTENT OF 12.5%. AO IS DIRECTED ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED IN PART. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 26 / 10 /2 017 S D/ - ( SANDEEP GOSAIN ) S D/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 26 / 10 /201 7 KARUNA SR. PS 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//