ACIT 32(2), MUMBAI V. SHRI. KEYUR S SHAH, MUMBAI

ITA 2992/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2633 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Bogus purchase; Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI , ! BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER . 2992 / /201 9 ((. .2009-10 ) ITA NO. 2992/MUM/2019 (A.Y.2009-10) ASSTT. COMMISSIONER OF INCOME TAX 32(2), ROOM NO.720, 7 TH FLOOR, KAUTILYA BHAVAN, C 41-43, G BLOCK, BKC, BANDRA(E) MUMBAI 400 051 / VS. : / APPELLANT SHRI KEYUR S. SHAH, SHOP NO.7, MANSAROVAR CHS LTD., SATYA NAGAR, OFF LINK ROAD, BEHIND MALPANY GROUND, BORIVALI (WEST) MUMBAI 400 092 PAN: AZAPS2745P : / RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS SMITA VERMA / DATE OF HEARING : 02/11/2020 / DATE OF PRONOUNCEMENT : 02/11/2020 / ORDER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-46, MUMBAI (IN SHORT THE CIT( A)) DATED 12/02/2019 FOR THE ASSESSMENT YEAR 2009-10. 2 ITA NO. 2992/MUM/2019 (A.Y.2009-10) 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM R ECORDS ARE : THE ASSESSEE IS ENGAGED IN TRADING OF GIFT ITEMS. ON THE BASIS OF AN INFORMATION RECEIVED BY DGIT(INV), MUMBAI FROM SALES TAX DEPARTMENT, GOVERN MENT OF MAHARASHTRA THAT THE ASSESSEE HAS OBTAINED BOGUS PURCHASE BILLS AMOUNTIN G TO RS.47,79,660/- FROM DECLARED HAWALA DEALERS, ASSESSMENT FOR ASSESSMENT YEAR 2009-10 IN THE CASE OF ASSESSEE WAS REOPENED. THE ASSESSING OFFICER AFTE R MAKING DETAILED INVESTIGATION CONCLUDED THAT THE ASSESSEE HAS OBTAINED BOGUS PURC HASE BILLS FROM SUSPICIOUS DEALERS TO MATCH THE PURCHASES MADE FROM GREY MARK ET. THE ASSESSING OFFICER ESTIMATED GP @16% ON BOGUS PURCHASES AND MADE ADDIT ION OF RS.7,64,746/-. AGGRIEVED BY THE ASSESSMENT ORDER DATED 26/02/2015 PASSED UNDER SECTION 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 ( IN SHORT T HE ACT), THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) IN PRINCIPLE UPHELD THE FINDINGS OF ASSESSING OFFICER, HOWEVER, GRANTED PART RELIEF TO THE ASSESSEE BY RES TRICTING THE GP @ 12.5% OF BOGUS PURCHASES. AGAINST THE PART RELIEF GRANTED BY THE CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. MS. SMITA VERMA, REPRESENTING THE DEPARTMENT SUB MITTED THAT THOUGH THE APPEAL OF REVENUE IS BELOW THE MONETARY LI MIT SPECIFIED VIDE CBDT CIRCULAR NO. 17/2019, DATED 08-08-2019 BUT THE CASE OF AS SESSEE FALLS UNDER EXCEPTION 10(E) OF CIRCULAR NO. 03 OF 2018 DATED 20-08.2018 . THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT DURING THE ASSESSMEN T PROCEEDINGS THE ASSESSEE COULD NEITHER PRODUCE THE SUPPLIERS OF THE GOODS NO R THE DOCUMENTS TO PROVE TRAIL OF GOODS SUCH AS, DELIVERY CHALLANS, TRANSPORTATION BI LLS, OCTROI RECEIPTS, ETC. THE ASSESSING OFFICER IN A FAIR MANNER HAS ESTIMATED GP @16% ON BOGUS PURCHASES. THE CIT(A) WITHOUT APPRECIATING THE FACTS HAS REDUCED I T TO 12.5%. THE LD. DEPARTMENTAL REPRESENTATIVE PRAYED FOR RESTORING THE FINDINGS OF ASSESSING OFFICER. 4. SUBMISSIONS MADE BY LD. DEPARTMENTAL REPRESENTAT IVE HEARD AND ORDERS OF AUTHORITIES BELOW EXAMINED. THE ASSESSEE HAS ALLEG EDLY OBTAINED BOGUS PURCHASE 3 ITA NO. 2992/MUM/2019 (A.Y.2009-10) BILLS AMOUNTING TO RS.47,79,660/- FROM NINE SUSPICI OUS DEALERS. THE ASSESSING OFFICER ESTIMATED GP @ 16% ON THE ALLEGED BOGUS PURCHASES. IN THE FIRST APPELLATE PROCEEDINGS THE CIT(A) MODIFIED THE ASSESSMENT ORDE R BY RESTRICTING THE GP TO 12.5% OF BOGUS PURCHASES. I AM OF THE CONSIDERED VIEW TH AT GP ESTIMATED BY ASSESSING OFFICER ON BOGUS PURCHASES WAS ON A HIGHER SIDE. T HE CIT(A) WAS, THEREFORE, JUSTIFIED IN REDUCING IT TO 12.5%. I CONCUR WITH THE ORDER O F CIT(A), HENCE, THE SAME IS UPHELD. THE APPEAL OF THE REVENUE IS DISMISSED SANS-MERIT. 5. THE REGISTRY WAS DIRECTED TO REPORT IF ANY APPEA L HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER OF CIT(A). AS PER REPORT NO APPEAL/CROSS OBJECTIONS HAS BEEN FILED BY THE ASSESSEE ASSAILING THE ORDER OF CIT(A) FOR ASSESSMENT YEAR 2009-10. IN CASE AT LATER POINT OF TIME IT I S FOUND THAT THERE IS AN APPEAL/CROSS OBJECTIONS OF THE ASSESSEE AGAINST THE IMPUGNED ORD ER, THEN THIS ORDER MAY BE RECALLED AND THE APPEAL OF REVENUE AND APPEAL/CRO SS OBJECTIONS OF THE ASSESSEE MAY BE HEARD TOGETHER. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED ON MONDAY THE 2 ND DAY OF NOVEMBER, 2020. SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER / MUMBAI, +(/ DATED: 02 /11/2020 VM , SR. PS(O/S) 4 ITA NO. 2992/MUM/2019 (A.Y.2009-10) COPY OF THE ORDER FORWARDED TO : 1. , / THE APPELLANT , 2. -. / THE RESPONDENT. 3. /. ( )/ THE CIT(A)- 4. /. CIT 5. 01-.( , . . . , / DR, ITAT, MUMBAI 6. 12345 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI