M/s. B.M. Chapalkar & Sons, Nashik V. Assistant Commissioner of Income-tax,

ITA 243/PUN/2015

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1475 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-06-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 10-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.243/PUN/2015 / ASSESSMENT YEAR : 2010-11 M/S. B.M. CHAPALKAR & SONS, 26, DEHBANOO COMPLEX, NASHIK PUNE ROAD, NASHIK ROAD, NASHIK 422 101 PAN : AADFB5084C VS. ACIT, CIRCLE-1, NASHIK APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 09-02-2015 PASSED BY THE CIT(A)-1, NASHIK IN RELATIO N TO THE ASSESSMENT YEAR 2010-11. 2. BRIEFLY, STATED, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE WAS SUBJECTED TO SURVEY ACTION U/S.133A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT) ON 06-08-2009. DURING THE COURSE OF SUCH SURVEY PROCEEDINGS, STATEMENTS OF THE PA RTNER AND APPELLANT BY SHRI P.M. SHINGTE RESPONDENT BY SHRI AJAY DHOKE DATE OF HEARING 10-12-2019 DATE OF PRONOUNCEMENT 16-12-2019 ITA NO. 243/PUN/2015 M/S/. B.M. CHAPALKAR & SONS 2 ACCOUNTANT OF THE ASSESSEE FIRM WERE RECORDED. THE PAR TNER OF THE FIRM, MR. SANDIP BHIMA CHAPALKAR, DISCLOSED ADDITIONAL INCOM E OF RS.45.00 LAKH FOR THE ASSESSMENT YEAR UNDER CONSIDE RATION, IN ADDITION TO SURRENDER OF RS.30.00 LAKH FOR THE ASSESSMEN T YEAR 2009-10. SUCH INCOME OF RS.45.00 LAKH WAS INCLUDED IN THE TOTAL INCOME AT THE TIME OF FILING THE RETURN. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) OBSER VED THAT THE DOCUMENTS IMPOUNDED DURING THE COURSE OF SURVEY TRA NSPIRED THAT SOME OF THE EXPENSES INCURRED IN THE NAME OF SUB-CON TRACTORS WERE NOT GENUINE. THE AO CAUSED ENQUIRIES TO BE CONDUC TED BY MEANS OF NOTICE U/S.133(6) TO THE SUB-CONTRACTORS FOR CARTIN G AND SUBLET WORK. NO RESPONSE CAME FROM SUCH PARTIES. THE ASSESSEE WAS ALSO CONFRONTED WITH THE SITUATION. SINCE THE ASSESSEE CO ULD NOT FURNISH CONFIRMATION LETTERS FROM THE SUB-CONTRACTORS/CARTING AGENTS, THE AO MADE ADDITION OF RS.1,52,05,180/- ON THIS S CORE. APART FROM THAT, THE AO OBSERVED THAT STATEMENT OF THE PARTNE R OF THE ASSESSEE FIRM DIVULGED THAT THE ASSESSEE INFLATED EXPEND ITURE UNDER THE GUISE OF PAYMENT TO SUB-CONTRACTORS. THE ASSES SEE ADMITTED TO HAVE MADE SUCH BOGUS PAYMENTS DURING THE YEAR UNDER CONSIDERATION AMOUNTING TO RS.19,99,920 AND RS.15,65,500 /- TO THE ITA NO. 243/PUN/2015 M/S/. B.M. CHAPALKAR & SONS 3 SUBLET CONTRACTORS, NAMELY, MR. POPAT HAKE AND MR. NUREY ASLAM ANSARI. ADDITION OF RS.35,65,420/- WAS MADE ON THIS SCOR E. FURTHER, THE ASSESSEE WAS FOUND TO HAVE RECORDED HAWAL A PURCHASES AMOUNTING TO RS.27,30,251/-. ADDITION FOR THIS SUM WAS ALSO MADE BY THE AO. IN THE FIRST APPEAL, THE ASSESSEE CONTENDED TH AT IT MADE A SURRENDER OF RS.45.00 LAKH WHICH OUGHT TO HAVE BEEN TAKEN INTO CONSIDERATION WHILE MAKING THE ADDITIONS. IT WAS ALSO SUBMITTE D THAT THE ASSESSEE HAD NECESSARY EVIDENCE TO SHOW THAT ALL THE TRANSACTIONS WERE GENUINE. THE LD. CIT(A) SUSTAINED THE FIRST ADDITION TO THE EXTENT OF RS.81,41,143/- AS AGAINST RS.1.52 CRORE MADE BY THE AO. THE OTHER ADDITIONS OF RS.35.65 LAKH AND RS.27.30 LAKH WERE CONFIRMED IN THE FIRST APPEAL. THE ASS ESSEE IS AGGRIEVED BY THE SUSTENANCE OF THESE ADDITIONS. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELE VANT MATERIAL ON RECORD, IT IS NOTED THAT THE ADDITION SIMILAR TO RS.1.5 2 CRORE AND ODD WAS MADE BY THE AO IN HIS ORDER FOR THE ASSESSMENT YEAR 2009-10. WHEN THE MATTER CAME UP FOR CONSIDERATION, THE TRIBUNAL VIDE ITS ORDER DATED 25-07-2014 IN ITA NO.1490/PUN/2012 RESTORED THE ADDITION IN RESPECT OF SUBLET WO RK AND CARTING CHARGES WITH CERTAIN DIRECTIONS TO THE FILE OF AO FO R A ITA NO. 243/PUN/2015 M/S/. B.M. CHAPALKAR & SONS 4 FRESH DECISION. THERE IS NO QUALITATIVE DIFFERENCE BETWEEN TH E FACTS OF THE ADDITION OF RS.1.52 CRORE MADE BY THE AO WHICH GO T REDUCED IN THE FIRST APPEAL TO THE TUNE OF RS.81,41,143/- AND THE OTH ER ADDITION OF RS.35.65 LAKH WHICH WAS AGAIN MADE IN SIMILAR CIRCUMSTANCES. THOUGH THE FACTUAL POSITION IN RESPECT OF TH IRD ADDITION OF RS.27.30 LAKH TOWARDS BOGUS PURCHASES IS SOM EWHAT DIFFERENT IN THE FACTUAL PANORAMA, BUT THE LD. AR SUBMITTED TH AT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO PUT FORTH TH E GENUINENESS OF THE TRANSACTIONS. RESPECTFULLY FOLLOWING THE O RDER PASSED BY THE TRIBUNAL FOR THE IMMEDIATELY PRECEDING ASSESS MENT YEAR AND THE OTHER RELEVANT FACTORS AS NOTED ABOVE, WE AR E OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATE LY IF THE IMPUGNED ORDER ON THIS SCORE IS SET-ASIDE AND THE M ATTER IS RESTORED TO THE FILE OF AO. WE ORDER ACCORDINGLY AND DIREC T THE AO TO DECIDE THE FATE OF THESE THREE ADDITIONS AFRESH AS PER LAW IN CONSONANCE WITH THE DIRECTIONS GIVEN BY THE TRIBUNAL IN ITS ORDE R FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOWED AN OPPORTUNITY OF HEARING IN SUC H FRESH PROCEEDINGS. ITA NO. 243/PUN/2015 M/S/. B.M. CHAPALKAR & SONS 5 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (R.S. SYAL) JUDICIAL MEMBER VICE PRESIDENT PUNE; DATED : 16 TH DECEMBER, 2019 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-1, NASHIK 4. THE CIT -1, NASHIK 5. , , / DR B, ITAT, PUNE 6. / GUARD FILE / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO. 243/PUN/2015 M/S/. B.M. CHAPALKAR & SONS 6 DATE 1. DRAFT DICTATED ON 10-12-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11-12-2019 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. *