MAHENDRA JAWANMAL JAIN, MUMBAI V. ITO 19(2)(3), MUMBAI

ITA 3098/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9948 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 05-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JANARDHANAN
• Keywords: Bogus purchase

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.3098/MUM/2017 : ASST.YEAR 2009-2010 SHRI MAHENDRA JAWANMAL JAIN M/S.KALA PURN METAL, ROOM NO.219 2 ND FLOOR, 199/215, PANJRAPOLE ROAD MUMBAI 400 004. PAN : AAGPJ6921D. / VS. THE INCOME TAX OFFICER WARD 19(2)(3) MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI VIMAL PUNMIYA /RESPONDENT BY : SHRI V.JANARDHANAN (DR) / DATE OF HEARING : 05.07.2017 / DATE OF PRONOUNCEMENT : 06.07.2017 / O R D E R THIS IS AN APPEAL BY THE ASSESSEE WHEREIN THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) WHEREIN 6.5% DISALLOWANCE ON ACCOUNT OF BOGUS PURCHASE AMOUNTING TO RS.35,18,053. 2. IN THIS CASE, THE ASSESSING OFFICER HAS MADE A DISALLOWANCE OF RS.35,18,053 BEING 12.5% OF THE BOGUS PURCHASES. UPON ASSESSEES APPEAL, THE LEARNED CIT(A) REDUCED IT TO 6.5%. 3. AGAINST THIS ORDER, ASSESSEE HAS FILED APPEAL BEFORE THE ITAT. 4. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. 5. UPON CAREFUL CONSIDERATION OF THE FACTS OF THE CASE, I FIND THAT OVERWHELMING EVIDENCES HAVE BEEN REFERRED BY THE AUTHORITIES BELOW THAT THE ITA NO.3098/MUM/2017. SHRI MAHENDRA JAWANMAL JAIN. 2 IMPUGNED PURCHASES ARE BOGUS. THERE IS NO EVIDENCE OF THE ACTUAL MOVEMENT OF THE GOODS UNDER DISPUTE. IN THESE CIRCUMSTANCES, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO HONBLE GUJARAT HIGH COURT DECISION IN THE CASE OF TAX APPEAL NO.240 OF 2003 IN THE CASE OF N.K.INDUSTRIES V. DCIT, ORDER DATED 20.06.2016, WHEREIN 100% OF THE BOGUS PURCHASES WAS HELD TO BE ADDED IN THE HANDS OF THE ASSESSEE AND TRIBUNALS RESTRICTION OF THE ADDITION TO 25% OF THE BOGUS PURCHASES WAS SET ASIDE. THE SPECIAL LEAVE PETITION AGAINST THIS ORDER ALONG WITH OTHERS HAS BEEN DISMISSED BY THE HONBLE APEX COURT VIDE ORDER DATED 16.01.2017. 6. HOWEVER, I FIND THAT THIS IS NOT AN APPEAL BY THE REVENUE. IN SUCH CIRCUMSTANCES, IT WILL NOT BE APPROPRIATE TO TAKE AWAY THE RELIEF ALREADY GRANTED BY THE LEARNED CIT(A). ACCORDINGLY, I UPHOLD THE ORDER OF THE LEARNED CIT(A) WHEREIN HE HAS SUSTAINED 6.5% AS DISALLOWANCE OUT OF THE BOGUS PURCHASE. 7. THE LEARNED COUNSEL OF THE ASSESSEE FAIRLY AGREED TO THE ABOVE PROPOSITION AND DID NOT PRESS THE MATTER ANY FURTHER. 8. IN THE RESULT, THIS APPEAL BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED ON THIS 06 TH DAY OF JULY, 2017. SD/- ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI; DATED : 06 TH JULY, 2017. DEVDAS* ITA NO.3098/MUM/2017. SHRI MAHENDRA JAWANMAL JAIN. 3 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.