DINESH M. BHANDARI, MUMBAI V. CIT (A)- 52 , MUMBAI

ITA 3590/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8347 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 24-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M A GOHEL
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO. 3589 & 3590 /MUM/201 8 (A.Y S : 2009 - 10 & 2011 - 12 ) SHRI DINESH M. BHANDARI ROOM NO . 13, 1 ST FLOOR, 118 , MOHAN PRABHU BUILDING, ARDESHIR DADY STREET, V.P. ROAD , MUMBAI 400 004 PAN: ABHPB 3510 C V. COMMISSIONER OF INCOME TAX ( A ) - 52 MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.A. GOHEL DEPARTMENT BY : SHRI KAILASH KANOJIYA DATE OF HEARING : 11.02.2019 DATE OF PRONOUNCEMENT : 05 .04 .2019 O R D E R PER C. N. PRASAD (JM) 1. THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST DIFFERENT ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 52, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 28.03.2018 FOR THE ASSESSMENT YEAR S 2009 - 10 AND 2011 - 12. 2. IN THESE APPEALS , THE ASSESSEE CHALLENGED THE ORDER OF THE LD.CIT(A) IN SUSTAINING THE DISALLOWANCE OF NON - GENUINE PURCHASES. 2 ITA NO. 3589 & 3590/MUM/2018 (A.YS: 2009 - 10 & 2010 - 11) SHRI DINESH M. BHANDARI 3. THE ONLY ARGUMENT ADVANCED BEFORE US BY THE LD. COUNSEL FOR THE ASSESSEE IS THAT DURING THE A.Y. 2011 - 12 THE LD.CIT(A) ESTIMATED THE PROFIT ELEMENT FROM THE PURC HASES TREATED AS NON - GENUINE @12.5%, HOWEVER, HE DIRECTED THE ASSESSING OFFICER TO ALLOW SET OFF OF GROSS PROFIT ALREADY SHOWN BY THE ASSESSEE IN THE REGULAR BOOKS IN RESPECT OF THE PURCHASES FROM THE HAWALA SUPPLIERS. HOWEVER, IT IS THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SIMILAR DIRECTION WAS NOT GIVEN BY THE LD.CIT(A) WHILE DISPOSING OF THE APPEAL FOR THE A.Y. 2009 - 10. 4. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A CAREFUL READING OF THE LD.CIT(A) ORDER , WE FIND THAT THE LD.CIT(A) WHILE DISPOSING OF THE APPEAL FOR THE A.Y. 2011 - 12 THOUGH ACCEPTED THE CONTENTION OF THE ASSESSING OF FICER THAT THE PURCHASES WERE NOT PROVED AS GENUINE AND ONLY THE PROFIT ELEMENT ON SUCH PURCHASES SHALL BE BROUGHT TO TAX @12.5% , HE HOWEVER, DIRECTED THE ASSESSING OFFICER TO EXCLUDE THE GROSS PROFIT ALREADY SHOWN BY THE ASSESSEE FROM THE ESTIMATED PURCHA SES OF 12.5% . HOWEVER, WHILE DISPOSING OF THE APPEAL FOR THE A.Y. 2009 - 10 T HE LD.CIT(A) SUSTAIN ED THE ACTION OF THE ASSESSING OFFICER IN ASSESSING THE PURCHASES @12.5%, SINCE IN THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE HIMSELF CAME 3 ITA NO. 3589 & 3590/MUM/2018 (A.YS: 2009 - 10 & 2010 - 11) SHRI DINESH M. BHANDARI FORWARD AN D AGREED FOR ADDITION @12.5% OF THE PURCHASES AS NON - GENUINE. THIS FACT WAS ALSO RECORDED BY THE LD. ASSESSING OFFICER IN HIS ORDER THAT THE ASSESSEE VIDE IN HIS SUBMISSIONS STATED THAT TO BUY PEACE OF MIND HE OFFERED 12.5% OF SUCH NON - GENUINE GROSS PURCH ASES FOR TAXATION. IN VIEW OF THE ADMISSION OF THE ASSESSEE THE LD.CIT(A) SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. WE ALSO OBSERVED THAT THE ASSESSEE HAD NOT CHALLENGED THE FINDING OF THE ASSESSING OFFICER OR THE LD.CIT(A). IN THE CIRCUMSTA NCES, W E DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) IN SUSTAINING THE ACTION OF THE ASSESSING OFFICER IN BRINGING TO TAX THE PROFIT ELEMENT FROM SUCH PURCHASES @12.5% AS THE ASSESSEE HIMSELF AGREED FOR SUCH ADDITION . WHEN THE ASSESSEE HIMSEL F AGREED FOR SUCH ADDITION WE DO NOT SEE ANY GRIEVANCE TO THE ASSESSEE. THUS, THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE SEEKING DIRECTION TO THE ASSESSING OFFICER TO REDUCE THE GROSS PROFIT ALREADY SHOWN FROM THE PURCHASES EVEN FOR THE A.Y. 2009 - 10 IS REJECTED. 6. IN THE RESULT, APPEAL S OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 05 TH APRIL , 2019 SD / - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 05/ 0 4 / 201 9 GIRIDHAR , S R. PS 4 ITA NO. 3589 & 3590/MUM/2018 (A.YS: 2009 - 10 & 2010 - 11) SHRI DINESH M. BHANDARI 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