DCIT 13(1)(2), MUMBAI V. UNITED ASPHALTERS P. LTD, MUMBAI

ITA 1823/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8377 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTALDR
• Keywords: Bogus purchase

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.1823/MUM/2016 ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER-13(1)(2), 02 ND FLOOR, ROOM NO.225, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 / VS. M/S UNITED ASPHALTERS PVT. LTD. 3-A/6, MAJITHA NAGAR, S.V. ROAD, KANDIVALI (W), MUMBAI-400067 ( / REVENUE) ( !' /RESPONDENT) PAN. NO. AAACU4547K CORRIGENDUM WE FIND THAT THE TRIBUNAL DISPOSED OFF THE AFORES AID APPEAL OF THE REVENUE VIDE ORDER DATED 06/07/2017. DURING HEARING OF THE REMAINING APPEALS OF DIFFEREN CE ASSESSMENT YEARS INCLUDING ASSESSMENT YEARS 2009-10 , #$%& ' / ASSESSEE BY SHRI DHARMESH SHAH / REVENUE BY SHRI RAJAT MITTAL-DR ITA NO. 1823/MUM/2016 M/S. UNITED ASPHALTERS P. LTD. 2 (APPEAL OF THE ASSESSEE), THE LD. COUNSEL FOR THE A SSESSEE CITED ORDER OF THE TRIBUNAL DATED 06/07/2017, WHERE IN AN INADVERTENT TYPOGRAPHICAL ERROR WAS NOTICED. THE L D. COUNSEL FOR THE ASSESSEE, SHRI DHARMESH SHAH AS WELL AS SHR I RAJAT MITTAL, LD. DR, AGREED THAT THE MISTAKE MAY BE RECT IFIED. BOTH WERE HEARD. AFTER HEARING BOTH SIDES, IT WAS F OUND THAT DUE TO INADVERTENT TYPOGRAPHICAL ERROR, SOME MISTAK E OCCURRED IN THE ORDER IN PARA 2.12 (PAGE-16 OF THE ORDER), WHICH IS REPRODUCED HEREUNDER:- 2.12. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, IF KEPT IN JUXTAPOSITION AND ANALYZED, ADMITTEDLY, IN SUCH TYPE OF CASES, THERE IS NO OPTION BUT TO ESTIMATE T HE PROFIT WHICH DEPENDS UPON THE SUBJECTIVE APPROACH OF AN INDIVIDUAL. HOWEVER, KEEPING IN VIEW THE PRINCIPLE OF JUDICIAL DISCIPLINE, RATIO LAID DOWN I N THE AFORESAID CASES (DISCUSSED HEREINABOVE), TO PLUG THE LEAKAGE OF REVENUE, WE DEEM IT APPROPRIATE TO ADOPT THE NET PROFIT OF 12.50% OF THE PURCHASES MADE BY THE ASSESSEE MINUS THE GP, ALREADY DECLARED/ SHOWN BY THE ASSESSEE. SO FAR AS, THE CASE RELIED UPON BY LD. DR IN HIS WRITTEN SUBMISSIONS IS CONCERNED, THAT IS DIFFERENT ON FACT AS THE PRESENT ASSESSEE IS A TRADER IN GOODS, THUS, WE AFFIRM THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL). ITA NO. 1823/MUM/2016 M/S. UNITED ASPHALTERS P. LTD. 3 WE NOTE THAT (ON GOING THROUGH THE RECORD) THE TRIBUNAL ADOPTED THE NET PROFIT AT 12.50% OF THE PU RCHASES MADE BY THE ASSESSEE MINUS THE GP ALREADY DECLARED/ SHOWN BY THE ASSESSEE. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) ADOPTED THE FIGURE OF 12.50% AND THE TRIBU NAL AFFIRMED THE STAND OF THE LD. COMMISSIONER OF INCOM E TAX (APPEAL). HOWEVER, IF THE PROFIT AT THE RATE OF 12. 50% OF THE BOGUS PURCHASES IS AFFIRMED THEN THERE IS NO QUESTI ON OF MINUS THE GP ALREADY DECLARED BY THE ASSESSEE, THER EFORE, THE NECESSARY CORRECTION IS MADE AND THE PARA 2.12 MAY BE READ AS UNDER:- 2.12. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, IF KEPT IN JUXTAPOSITION AND ANALYZED, ADMITTEDLY, IN SUCH TYPE OF CASES, THERE IS NO OPTION BUT TO ESTIMATE T HE PROFIT WHICH DEPENDS UPON THE SUBJECTIVE APPROACH OF AN INDIVIDUAL. HOWEVER, KEEPING IN VIEW THE PRINCIPLE OF JUDICIAL DISCIPLINE, RATIO LAID DOWN I N THE AFORESAID CASES (DISCUSSED HEREINABOVE), TO PLUG THE LEAKAGE OF REVENUE, WE DEEM IT APPROPRIATE TO ADOPT THE NET PROFIT OF 12.50% OF THE PURCHASES, ADOPTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL). SO FAR AS, THE CASE RELIED UPON BY LD. DR IN HIS WRITTEN SUBMISSIONS IS CONCERNED, THAT IS DIFFERENT ON FACT AS THE PRESENT ASSESSEE IS A TRAD ER ITA NO. 1823/MUM/2016 M/S. UNITED ASPHALTERS P. LTD. 4 IN GOODS, THUS, WE AFFIRM THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL). THE LD. ASSESSING OFFICER IS DIRECTED TO ACT UPON T HE CORRIGENDUM ORDER ISSUED HEREINABOVE. THIS CORRECTION/CORRIGENDUM WAS TOLD TO THE LD. REPRESEN TATIVES FROM BOTH SIDES AND THEY AGREED TO IT. THUS, THIS CORRIGENDUM IS ISSUED TODAY ON 06/12/2017. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) !' / ACCOUNTANT MEMBER #!' /JUDICIAL MEMBER MUMBAI; *# DATED : 06/12/2017 F{X~{T? P.S / /. #. !$%#&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-!' / THE APPELLANT (RESPECTIVE ASSESSEE) 2. !' / THE ASSESSEE. 3. . . /' ( ,- ) / THE CIT, MUMBAI. 4. . . /' / CIT(A)- , MUMBAI, 5. 12 '#$ , . ,-3 ,$ 4 , / DR, ITAT, MUMBAI 6. 5% 6 / GUARD FILE. !$ / BY ORDER, 1-' ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI