SAWAILAL BHATTI , Mumbai V. ITO- 20(3)(2), Mumbai

ITA 3189/MUM/2022

AI Insights

The case involves appeals by Sawailal Surtaram Bhatti against the orders of the Learned Commissioner of Income Tax (Appeals), which sustained the action of the Assessing Officer in treating certain purchases as non-genuine. The Assessing Officer had reopened the assessments for the years 2009-10 and 2011-12 based on information from DGIT(Inv.), Mumbai, regarding accommodation entries. The Tribunal found that while the purchases were not conclusively proven to be from the claimed parties, the sales from these purchases were accepted as genuine. Therefore, it was deemed appropriate to estimate the profit element from these purchases rather than treating the entire purchases as non-genuine.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123799 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 05-02-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 15-12-2022
• Other Referred Cases: Bholanath Polyfab Pvt. Ltd [355 ITR 290], CIT v. Simit P. Seth [38 taxman.com 385], CIT v. Nikunj Eximp [216 Taxman.com 171]
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Accommodation entries; Reassessment proceedings
• Section: 147; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI AMIT SHUKLA, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NOs. 3189 & 3193/MUM/2022 (A.Ys: 2009-10 & 2011-12) Sawailal Surtaram Bhatti 161, 4 th Floor Panchshil Niwas, 5 th Kamathipura Mumbai - 400008 PAN: AEMPB3718G v. Income Tax Officer – 20(3)(2) Matru Mandir, Parel Mumbai – 400 007 (Appellant) (Respondent) Assessee Represented by : Shri Dhaval Shah Department Represented by : Ms. Mini Vinod Date of Hearing : 06.02.2023 Date of Pronouncement : 10.02.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. These appeals are filed by the assessee against different orders of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short “Ld.CIT(A)”] dated 18.10.2022 2 ITA NOs. 3189 & 3193/MUM/2022 Sawailal Surtaram Bhatti for the A.Ys. 2009-10 and 2011-12 in sustaining the action of the Assessing Officer. 2. Briefly stated the facts are that, assessee an individual engaged in the business of making of steel furniture filed return of income on 07.07.2009 and 10.08.2011 declaring income of ₹.7,75,359/- and ₹.2,99,360/- for the A.Y. 2009-10 and A.Y.2011-12 respectively, and the returns were processed u/s. 143(1) of Income-tax Act, 1961 (in short “Act”). Subsequently, Assessing Officer received information from the DGIT(Inv.,), Mumbai about the accommodation entries provided by various dealers and assessee was also one of the beneficiary from those dealers. The assessments were reopened u/s. 147 of the Act based on the information received from DGIT (Inv.,), Mumbai, that the assessee has availed accommodation entries from various dealers who are said to be providing accommodation entries without there being transportation of any goods. In the reassessment proceedings, the assessee was required to prove the genuineness of the purchases made from various dealers as referred in Assessment Order. In response assessee submitted that the purchases made are genuine. 3 ITA NOs. 3189 & 3193/MUM/2022 Sawailal Surtaram Bhatti 3. Not convinced with the submissions of the assessee the Assessing Officer treated the purchases as non-genuine and he was of the opinion that assessee had obtained only accommodation entries without there being any transportation of materials and the assessee might have made purchases in the gray market. It is the finding of the Assessing Officer that assessee failed to produce the parties and as such the parties remained unverifiable. Therefore, Assessing Officer treated ₹.24,56,579/- and ₹.2,13,304/- as non-genuine, being 12.5% of the total non-genuine purchases of ₹.1,96,52,633/- and ₹.17,06,432/- for the A.Y. 2009-10 and A.Y.2011-12 respectively. On appeal the Ld.CIT(A) sustained the action of the Assessing Officer in estimating the Gross Profit at 12.5%. Against these orders of the Ld.CIT(A) assessee is in appeal. 4. Ld. Counsel for the assessee reiterated the submissions made before the Ld.CIT(A). Ld. Counsel for the assessee further submitted that the assessee is in the business of Iron and steel and already declared the profit of 7.79% in A.Y. 2009-10 and 6.17% in A.Y. 2011-12. The applicable VAT during that period was only 4%. He prayed that the addition may be sustained at the applicable VAT rate. Further, he submitted that assessee is not pressing the Ground Nos. 1 to 4 of grounds of appeal. 4 ITA NOs. 3189 & 3193/MUM/2022 Sawailal Surtaram Bhatti 5. On the other hand, Ld. DR vehemently supported the orders of the authorities below. 6. Considered the rival submissions and material placed on record and perused the orders of the authorities below. It is not in dispute that sales have been accepted as genuine from out of these purchases. When the sales have been accepted as genuine the entire purchases cannot be treated as non-genuine. The Hon'ble Gujarat High Court in the case of Bholanath Polyfab Pvt. Ltd [355 ITR 290] held that when the assessee made purchases and sold the finished goods as a natural corollary not the entire amount covered under such purchases would be subject to tax but only the profit element embedded therein. Similar view has been taken by the Hon'ble Gujarat High Court in the case of CIT v. Simit P. Seth [38 taxman.com 385]. Simply because the parties were not produced the entire purchases cannot be added as held by the Bombay High Court in the case of CIT v. Nikunj Eximp [216 Taxman.com 171]. We agree with the view of the lower authorities that there should be an estimation of profit element from these purchases and should be estimated reasonably as the assessee could not conclusively prove that the purchases made are from the parties as claimed, especially in the absence of any confirmations from them. Taking the totality of facts and circumstances, keeping in 5 ITA NOs. 3189 & 3193/MUM/2022 Sawailal Surtaram Bhatti view the nature of business of the assessee i.e. trader in Iron and Steel Metals, it would be justified if the profit element embedded in those purchases are estimated at 5%. Accordingly, we direct the Assessing Officer to estimate the profit element from the non-genuine purchases at 5% for both the Assessment Years i.e., A.Y. 2009-10 and A.Y. 2011-12 and restrict the disallowance of purchases to 5% and compute the income accordingly. 7. In the result, appeals filed by the assessee are partly allowed. Order pronounced in the open court on 10 th February, 2023. Sd/- Sd/- (AMIT SHUKLA) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 10/02/2023 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Assessee 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