SHRI RITESHKUMAR K. BAFNA, MUMBAI V. INCOME TAX OFFICER 20(3)(1), MUMBAI

ITA 2321/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9136 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Keywords: Bogus purchase; Corroborative evidences
• Section: 133(6); 143(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 2321 /MUM./2018 ( ASSESSMENT YEAR : 20 09 10 ) SHRI R ITESHKUMAR K. BAFNA PRATIKSHA TOWER FLAT NO.102, B WING R.S. NIMKAR MARG MUMBAI 400 008 PAN AABPB7160M . APPELLANT V/S INCOME TAX OFFICER WARD 20 (3)( 1 ), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : S.K. BEPARI DATE OF HEARING 04 . 12 .2018 DATE OF ORDER 14.12.2018 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25.01.2018 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 32, MUMBAI, FOR THE ASSESSMENT YEAR 2009 - 10. 2 . WHEN THE APPEAL WAS CALLED FOR HEARING NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE DESPITE NOTICE OF HEARING. THEREFORE, WE PROCEED TO DISPOSE OF THE APPEAL EX PARTE QUA THE 2 SHRI R ITESHKUMAR K. BAFNA ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTAT IVE. 3 . THE ONLY DISPUTE IN THE PRESENT APPEAL RELATES TO ADDITION MADE ON ACCOUNT OF BOGUS PURCHASES. 4 . BRIEFLY THE FACTS ARE, THE ASSESSEE AN INDIVIDUAL IS ENGAGED IN THE BUSINESS OF TRADING IN FERROUS AND NONFERROUS METALS. FOR THE ASSESSMENT YEAR UNDER DI SPUTE THE ASSESSEE FILED HIS RETURN OF INCOME ON 29.09.2009 DECLARING TOTAL INCOME OF RS.2,05,650. THE RETURN OF INCOME WAS INITIALLY PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT,1961 (IN SHORT, ACT). SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEI VED FROM THEDGIT (INV), MUMBAI, AS WELL AS SALES - TAX DEPARTMENT, MAHARASHTRA GOVT. THAT PURCHASES OF RS. 1,17, 65,998 SHOWN TO HAVE BEEN MADE FROM SOME PARTIES ARE NOT GENUINE, THE ASSESSING OFFICER REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. IN COURSE OF THE ASSESSMENT PROCEEDINGS, TO VERIFY THE GENUINENESS OF PURCHASES MADE FROM THE CONCERNED PARTIES, THE ASSESSING OFFICER ISSUED NOTICES UNDER SECTION 133(6) OF THE ACT. HOWEVER, AS ALLEGED BY THE ASSESSING OFFICER, THE NOTICES ISSUED RETURNED B ACK UNSERVED. IN VIEW OF THE AFORESAID, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PRODUCE THE CONCERNED PARTIES ALONG WITH THE COPY OF INCOME TAX RETURN, LEDGER ACCOUNT, THE BANK STATEMENT AND ORIGINAL PAN CARD OF THE CONCERNED PARTIES. AS ALLEGED BY THE 3 SHRI R ITESHKUMAR K. BAFNA ASSESSING OFFICER, THE ASSESSEE FAILED TO PRODUCE EVIDENCE TO PROVE THE DELIVERY OF GOODS WHICH COULD HAVE ESTABLISHED THE GENUINENESS OF PURCHASES. ACCORDINGLY, HE HELD THAT THE PURCHASES SHOWN TO HAVE BEEN MADE BY THE ASSESSEE FROM THE TWO PARTIES WERE NOT GENUINE. ACCORDINGLY, HE PROCEEDED TO ESTIMATE THE PROFIT ON THE BOGUS @ 12. 5% WHICH WORKED OUT TO RS. 2,20,750 AND ADDED BACK TO THE INCOME OF THE ASSESSEE. BEING AGGRIEVED WITH THE AFORESAID ADDITION, ASSESSEE PREFERRED APPEAL BEFORE THE COMMI SSIONER (APPEALS). AS IT APPEARS, AT THE TIME OF HEARING OF APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS) NO ONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, LEARNED COMMISSIONER (APPEALS) SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. 5 . WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, IN COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ON THE BASIS OF SPECIFIC INFORMATION AVAILABLE WITH HIM CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF PURCHASES MADE FROM THE PARTIES AMOUNTING TO RS. 17, 65,990 WITH SUPPORTING EVIDENCES. HOWEVER, THE ASSESSEE WAS UNABLE TO PROVE THE GENUINENESS OF PURCHASES BY FURNISHING ANY COGENT EVIDENCE. THEREFORE, THE ASSESSING O FFICER PROCEEDED TO ADD THE PROFIT ELEMENT EMBEDDED IN THE BOGUS PURCHASES BY ESTIMATING IT AT 12.5% OF THE BOGUS PURCHASES. NEITHER BEFORE THE 4 SHRI R ITESHKUMAR K. BAFNA COMMISSIONER (APPEALS) NOR EVEN BEFORE US THE ASSESSEE HAS APPEARED OR PRODUCED ANY SUBSTANTIVE EVIDENCE TO CONT ROVERT THE FINDINGS OF THE ASSESSING OFFICER. IN THESE CIRCUMSTANCES, WHEN THE ASSESSEE HAS FAILED TO PROVE GENUINENESS OF PURCHASES CONCLUSIVELY, IN OUR VIEW, THE ASSESSING OFFICER WAS JUSTIFIED IN ADDING THE PROFIT ELEMENT EMBEDDED IN THE NON GENUINE PUR CHASES. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. GROUNDS RAISED ARE DISMISSED. 6 . IN THE RESULT, ASSESSEE'S APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.12.2018 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 14.12.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY P RADEEP J. CHOWDHURY TRUE COPY BY ORDER (ASSTT. REGISTRAR/SR.P.S) ITAT, MUMBAI