Yogesh Ashok Lalwani, Pune V. Income-tax Officer, Ward - (HQ)-6(1), Pune

ITA 2239/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3662 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: THIS CONSOLIDATED
• Assessee Lawyers: RELATE TO ASSESSMENT YEARS
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NOS.2239 & 2240/PUN/2017 / ASSESSMENT YEARS : 2009-10 & 2010-11 YOGESH ASHOK LALWANI, PROP. MUNIYOG PLY, A/P. BHIGWAN, TAL. INDAPUR, PUNE 413 110 PAN : ABAPL1548F VS. ITO, WARD (HQ)-6(1), PUNE (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THESE TWO APPEALS BY THE ASSESSEE RELATE TO THE ASSESSMENT YEARS 2009-10 AND 2010-11. SINCE COMMON ISS UE IS RAISED IN THESE TWO APPEALS, I AM, THEREFORE, PROCEEDIN G TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. A.Y. 2009-10 : 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT MAHARASHTRA SALES TAX DEPARTMENT INFORMED NAMES OF CERTAIN APPELLANT BY SHRI PRATEEK JHA & SHRI PRAYAG JHA RESPONDENT BY SHRI ACHAL SHARMA DATE OF HEARING 19-02-2019 DATE OF PRONOUNCEMENT 20-02-2019 ITA NOS.2239 & 2240/PUN/2017 YOGESH A. LALWANI 2 SUPPLIERS/PARTIES AS NON-GENUINE/HAWALA DEALERS WHO HAD PROVIDED ENTRIES FOR BOGUS PURCHASES BY ISSUING FALSE BILLS . THE ASSESSEE WAS FOUND TO BE ONE OF THE BENEFICIARIES, WHO H AD CLAIMED PURCHASES WORTH RS.31,96,554/- FROM TWO NON- GENUINE HAWALA PARTIES, NAMELY, SIDDHIVINAYAK ENTERPRISES AND MEENAKSHI ENTERPRISES. THE ASSESSING OFFICER (AO) INITIATED RE-ASSESSMENT PROCEEDINGS. IN THE COURSE OF SUCH PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAD OFFE RED GP AT 17.84% ON TOTAL MATERIAL PURCHASES. IN VIEW OF THE BOGUS PURCHASES, THE ASSESSEE OFFERED DISALLOWANCE OF 20% OF PURCHASES AT RS.6,39,310/-, WHICH WAS ADDED BY THE AO . THE LD. CIT(A) DISMISSED THE APPEAL, AGAINST WHICH THE ASSESSE E HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH TH E RELEVANT MATERIAL ON RECORD. IT IS SEEN THAT CASES OF SEVE RAL ASSESSEES WHO HAD OBTAINED BOGUS PURCHASES FROM SUCH PERSONS HAVE COME UP FOR CONSIDERATION BEFORE THE PUNE BENCHES OF THE TRIBUNAL. VIDE THE LEAD ORDER IN THE CASE O F M/S. CHHABI ELECTRICALS PVT. LTD. AND OTHERS VS. DCIT DATED 28-04-2017 IN ITA NO.795/PUN/2014 AND OTHERS, THE TRIBUNAL HAS MADE CERTAIN CATEGORIES. CATEGORY NO. IV OF THE SAID ITA NOS.2239 & 2240/PUN/2017 YOGESH A. LALWANI 3 ORDER, WHICH IS GERMANE TO THE INSTANT APPEAL, PROVIDES AS UNDER : IV. THE NEXT INSTANCE IS THE CASE OF GOODS WHICH H AVE BEEN ADMITTEDLY SOLD BY THE HAWALA DEALER AND HAS BEEN RECE IVED BY THE ASSESSEE, WHO IN TURN HAD MAINTAINED QUANTITATI VE DETAILS AND ALSO EVIDENCE OF ITS MOVEMENT I.E. TRANSPORT ATION DETAILS AND QUALITY CONTROL DETAILS OF CONSUMPTION OF T HE SAID MATERIAL OR EXACT DETAILS OF SALE OF THE SAME CONSIGNME NT THROUGH SAME TRANSPORTER DIRECTLY TO THE PARTY, THEN THE TOTAL PURCHASES CANNOT BE ADDED IN THE HANDS OF ASSESSEE. HOWEVER, SINCE THE PURCHASES ARE MADE FROM THE GREY MARKET, SOME ESTIMATION NEEDS TO BE MADE IN THE HANDS OF ASS ESSEE. THE TRIBUNAL IN M/S. CHETAN ENTERPRISES VS. ACIT (SUPRA) HAS ALREADY HELD THAT THE ADDITION BE MADE BY ESTIMATING TH E SAME @ 10% OF THE ALLEGED HAWALA PURCHASES, OVER AND AB OVE THE GP SHOWN BY THE RESPECTIVE ASSESSEE. 4. GOING BY THE RATIO LAID DOWN IN THE CASE OF M/S. CHHABI ELECTRICALS PVT. LTD. AND OTHERS (SUPRA), WHICH HAS BEEN FOLLOWED IN INNUMERABLE NUMBER OF CASES, I HOLD THAT THE ADDITION SHOULD HAVE BEEN SUSTAINED @10% OF ALLEGED HAWALA PURCHASES OVER AND OVER THE NORMAL GP RATE SHOWN BY THE ASSESSEE AT 17.84%. SINCE THE AO HAS ADDED ONLY 20% IN RESPECT OF SUCH BOGUS PURCHASES, WHICH IS LESS THAN THE RATE GIVEN IN M/S. CHHABI ELECTRICALS PVT. LTD., BEING, 10% OVER AND ABOVE THE NORMAL GP RATE WHICH IN THE INSTANT CASE IS 17.84%, I HOLD THAT NO FURTHER INTERFERENCE IS WARRANTED IN THE IMPUGNED ORDER. ITA NOS.2239 & 2240/PUN/2017 YOGESH A. LALWANI 4 A.Y. 2010-11 : 5. THE FACTS FOR THIS ASSESSMENT YEAR ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF THE PRECEDING YEAR. IN THIS YEAR, THE TO TAL BOGUS PURCHASES MADE BY THE ASSESSEE WERE TO THE TUNE O F RS.53,31,307/-. THE ASSESSEE OFFERED GP RATE AT 20%. THE AO, ON THE BASIS OF DISALLOWANCE OFFERED BY THE ASSESSEE AT 20%, MADE AN ADDITION OF RS.10,66,261/-, WHICH REMAINED UNALTERED BEFORE THE LD. CIT(A). 6. AS THE ADDITION MADE BY THE AO AND SUSTAINED IN THE F IRST APPEAL AT 20% OF THE BOGUS PURCHASES IS LESS THAN 25% (10 % OVER THE ABOVE THE NORMAL GP RATE OF 15%), I HOLD THAT N O FURTHER RELIEF IS WARRANTED. 7. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH FEBRUARY, 2019. S SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 20 TH FEBRUARY, 2019 ITA NOS.2239 & 2240/PUN/2017 YOGESH A. LALWANI 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-7, PUNE 4. THE PR. CIT-6, PUNE 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 19-02-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 19-02-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *