UNIVERSAL INFRAPROJECTS, MUMBAI V. ITO 32 (3)(2), MUMBAI

ITA 2443/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2218 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 18-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSHIL KUMAR PODDAR
• Keywords: Bogus purchase
• Section: 143(3); 201; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN , HON'BLE ACCOUNTANT MEMBER IT A. NO. 2443 /MUM/201 9 (A.Y : 2011 - 12) M/S. UNIVERSAL INFRAPROJECTS FLAT NO. 5, 1 ST FLOOR MATRU CHHAYA CHS LTD ROSHAN NAGAR, BORIVALI (W) MUMBAI 400 092 PAN: AACFU1954H V. C OMMISSIONER OF INCOME - TAX 32 C - 11, PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX BORIVALI (W) , MUMBAI - 400 051 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANANT N. PAI DEPARTMENT BY : SHRI SUSHILKUMAR PODDAR DATE OF HEARING : 18.09.2019 DATE OF PRONOUNCEMENT : 2 8 .11.2019 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE PR INCIPAL COMMISSIONER OF INCOME - TAX - 32, MUMBAI [HEREINAFTER FOR SHORT 'LD. PR. CIT ] DATED 25.03.2019 PASSED U/S. 263 OF THE ACT. 2. THE ASSESSEE IN ITS APPEAL MAINLY CHALLENGED THE ORDER OF THE LD. PR. CIT IN PASSING REVISION ORDER U/S. 263 OF THE ACT HOLDING THAT THE AS SESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S 147 OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF THE REVENUE. LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT REVISION ORDER WAS PASSED 2 ITA.NO. 2443/MUM/2019 (A.Y:2011 - 12) M/S. UNIVERSAL INFRAPROJECTS MERELY RELYING ON THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF N.K. PROTEINS LTD., IN SLP (C) CC NO. 769 OF 2017 TO TREAT 100% OF THE PURCHASES OF .12,49,430/ - MADE BY THE ASSESSEE AS BOGUS. LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT WHILE COMPLETING THE ASSESSMENT U/S. 143(3) R.W.S 147 OF THE ACT THE ASSESSING OFFICER ESTIMATED THE PROFIT ELEMENT @25% OF THE BOGUS PURCHASES RELYING ON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF SIMIT P. SHETH [356 ITR 451] AND COMP LETED THE ASSESSMENT. HOWEVER, BY WAY OF REVISION THE LD.PR. CIT DIRECTED THE ASSESSING OFFICER TO PASS A FRESH ORDER BASED ON THE DECISION OF THE HON'BLE SUPREME COURT AND RATIO OF N. K. PROTEINS LTD., (SUPRA). LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT ORDER PASSED BY THE ASSESSING OFFICER U/S. 143 R.W.S. 147 OF THE ACT IS NOT ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THERE IS NO FINDING BY THE LD. PR. CIT TO THAT E FFECT. 3. ON THE OTHER HAND, LD. DR STRONGLY SUPPORTED THE ORDERS OF THE LD. PR. CIT . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE OBSERVE FROM THE ORDER OF THE LD. PR. CIT THAT THE ORDER PASSED BY THE ASSESSING OFFI CER U/S. 143 R.W.S. 147 OF THE ACT WAS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BASED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF N.K. PROTEINS 3 ITA.NO. 2443/MUM/2019 (A.Y:2011 - 12) M/S. UNIVERSAL INFRAPROJECTS LTD., (SUPRA) . ON A PERUSAL OF THE ORDER OF THE LD. PR.CIT WE FIND T HAT THE LD. PR.CIT HAS NOT RECORDED ANY FINDING AS TO HOW THIS DECISION OF N.K. PROTEINS LTD., (SUPRA) IS APPLICABLE TO THE FACTS OF THE ASSESSEES CASE AND THERE IS NO FINDING BY THE LD. PR.CIT AS TO THAT HOW THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 143 R.W.S. 147 OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. LD. PR. CIT IN THE ORDER PASSED U/S. 263 OF THE ACT MERELY STATED THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF N.K. PROTEINS LTD., (SUPRA) . EXCEPT SAYING THAT IT IS CONTRARY TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF N.K. PROTEINS LTD., (SUPRA) T HE LD. PR. CIT HAS NOT EXPLA INED HOW THE DECISION IS APPLICABLE AND HOW THE ASSESSMENT ORDER PASSED IN THIS CASE IS CONTRARY TO THE DECISION OF THE HON'BLE SUPREME COURT. IN THE CIRCUMSTANCES, WE ARE NOT ABLE TO AGREE WITH THE VIEW OF THE LD . PR.CIT THAT ORDER PASSED U/S. 143 R.W.S. 147 OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THUS, WE QUASH THE ORDER PASSED BY THE LD. PR.CIT U/S. 263 OF THE ACT . 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 2 8 TH NOVEMBER , 201 9 SD/ - SD/ - ( N.K. PRADHAN) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 2 8 / 11/2019 GIRIDHAR , S R. PS 4 ITA.NO. 2443/MUM/2019 (A.Y:2011 - 12) M/S. UNIVERSAL INFRAPROJECTS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM