ITO - 28(1)(2), NAVI MUMBAI V. M/S BMH CONCARE TECHNOLOGY INC, NAVI MUMBAI

ITA 3092/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3669 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OOMMEN THARIANLD
• Keywords: Bogus purchase
• Section: 143(3); 133(6)

Judgement Text

M/S. BMH CONCARE TECHNOLOGY INC. ITA NO.3092MUM/2019 ASSESSMENT YEAR: 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI SAKTIJIT DEY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.3092/MUM/2019 ( / ASSESSMENT YEAR:2009-10) INCOME TAX OFFICER - 28(1)( 2 ) ROOM NO.325, 3 RD FLOOR TOWER NO.6,VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI-400 703 / VS. M/S. BMH CONCARE TECHNOLOGY INC. PLOT NO.16, SECTOR-6 SANPADA, NAVI MUMBAI-400 705 PAN/GIR NO. AAGFB - 6284 - R ( '# /APPELLANT ) : ( $%'# / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI OOMMEN THARIAN-LD. SR. DR / DATE OF HEARING : 10/11/2020 / DATE OF PRONOUNCEMENT : 10/11/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2009-10 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME- TAX (APPEALS)-26, NAVI MUMBAI [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT-26/IT/231/2015-16 DATED 25/02/2019 IN RESTR ICTING CERTAIN ADDITION ON ACCOUNT OF ALLEGED BOGUS PURCHASES TO 1 2.5% OF TOTAL BOGUS PURCHASES OF RS.52,97,038/- M/S. BMH CONCARE TECHNOLOGY INC. ITA NO.3092MUM/2019 ASSESSMENT YEAR: 2009-10 2 2. ALTHOUGH NONE APPEARED FOR ASSESSEE DURING THE C OURSE OF HEARING, HOWEVER, THE MATTER WAS PROCEEDED WITH EX- PARTE QUA THE ASSESSEE SINCE THE MATERIAL ON RECORD WAS QUITE SUF FICIENT FOR DISPOSAL OF THE APPEAL. THE LD. DR PLEADED FOR RESTORATION OF ADDITIONS MADE BY LD. AO. 3. THE MATERIAL ON RECORD WOULD SHOW THAT THE ASSES SEE BEING RESIDENT FIRM IS STATED TO BE ENGAGED IN THE BUSINE SS OF MANUFACTURING OF CONVEYER BELT. IT WAS ASSESSED FOR THE YEAR UNDER C ONSIDERATION U/S. 143(3) R.W.S. 147 ON 09/03/2015 WHEREIN IT WAS SADD LED WITH PEAK ADDITION OF RS.42.53 LACS ON ACCOUNT OF ALLEGED BOG US PURCHASE. THE SAME STEM FROM INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, MAHARASHTRA WHEREIN IT TRANSPIRED THAT THE ASSESSEE MADE AGGREGATE PURCHASES OF RS.52.97 LACS FROM 4 SUSPICIOUS ENTITI ES. THE DETAILS OF PURCHASES SO MADE HAVE ALREADY BEEN EXTRACTED IN PA RA-3 OF THE ASSESSMENT ORDER. ALTHOUGH THE ASSESSEE FILED COPIE S OF BILLS, LEDGER ACCOUNT OF PARTIES & RELEVANT BANK STATEMENTS TO SU PPORT THESE TRANSACTIONS, HOWEVER, NOTICES ISSUED U/S. 133(6) T O CONFIRM THE TRANSACTIONS REMAINED UN-SERVED. THE ASSESSEE COULD NOT PRODUCE ANY OF THE PARTIES. THEREFORE, A CONCLUSION WAS DRAWN T HAT THE ASSESSEE WAS UNABLE TO DISCHARGE THE ONUS OF PROVING THE PURCHAS E TRANSACTIONS. THE ASSESSEE HAD CLAIMED THAT THE GOODS WERE RECEIV ED AND CORRESPONDING SALES WERE ACCOUNTED FOR AND THERE CO ULD NOT BE ANY SALES WITHOUT PURCHASES. ACCEPTING THE SAME, LD. AO MADE PEAK ADDITION OF RS.42.53 LACS U/S. 69C. 4. UPON FURTHER APPEAL, LD. CIT(A), INTER-ALIA, RELYING UPON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SIMIT P. M/S. BMH CONCARE TECHNOLOGY INC. ITA NO.3092MUM/2019 ASSESSMENT YEAR: 2009-10 3 SHETH [356 ITR 451] RESTRICTED THE ADDITION TO 12.5% OF AGGREGATE PURCHASES AND PARTLY ALLOWED THE APPEAL. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. IT APPEARS THAT THE ASSES SEE HAS ACCEPTED THE VERDICT AND HAS NOT PREFERRED ANY FURTHER APPEAL. 5. UPON DUE CONSIDERATION OF FACTUAL MATRIX AS ENUM ERATED IN PRECEDING PARAGRAPHS, WE FIND NO REASON TO INTERFER E WITH THE ORDER OF LD. FIRST APPELLATE AUTHORITY. EVIDENTLY, THE ASSES SEE WAS IN POSSESSION OF PRIMARY PURCHASE DOCUMENTS AND CORRESPONDING SAL ES FORMED PART OF BOOKS OF ACCOUNT. AT THE SAME TIME, NOTICES ISSUED U/S. 133(6) REMAINED UNSERVED AND ASSESSEE FAILED TO PRODUCE EVEN A SING LE PARTY. TRULY, THERE COULD NOT BE ANY SALE WITHOUT ACTUAL PURCHASE OF MATERIAL AND THEREFORE A PRESUMPTION COULD BE DRAWN THAT THE MAT ERIAL WAS PURCHASED FROM THE OPEN MARKET WHILE INVOICES WERE PROCURED F ROM TAINTED SUPPLIERS. THEREFORE, ESTIMATING THE ADDITIONS @ 12.5% WAS QUITE FAIR AND REASONABLE. THEREFORE FINDING NO SUBSTANCE IN THE A PPEAL, WE DISMISS THE SAME. 6. THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED ON 10 TH NOVEMBER, 2020. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 10/11/2020 SR.PS:-JAISY VARGHESE M/S. BMH CONCARE TECHNOLOGY INC. ITA NO.3092MUM/2019 ASSESSMENT YEAR: 2009-10 4 !' #' / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. + ,$- , - , / DR, ITAT, MUMBAI 6. , ./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.