RAJENDRA AMRATLAL CHOKSI, MUMBAI V. ITO WD 17(3)(1), MUMBAI

ITA 3615/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8553 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 17-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH MUNDRA
• Keywords: Bogus purchase
• Section: 143(3); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C MUMBAI BEFORE SHRI D.T.GARASIA , JM AND SHRI RAJESH KUMAR, AM I.T.A. NO. 3615 /MUM/20 1 7 ( / ASSESSMENT YEAR : 20 09 - 10 ) SHRI RAJENDRA AMRATLAL CHOKSHI, M - 9, STEEL YARD HOUSE, IRON MARKET, MUMBAI - 400009. / VS. THE COMMISSIONER OF INCOME TAX (APPEALS) - 28, MUMBAI ./ PAN : AACPC9930F ( / APPELLANT) : ( / RESPONDENT ) / ASSESSEE BY : SHR I RAJESH MUNDRA / REVENUE BY : SHRI PURUSHOTTAM KUMAR / DATE OF HEARING : 9 .9. 2017 / DATE OF PRONOUNCEMENT : 17. 1 1 . 201 7 / O R D E R PER RAJESH KUMAR, A. M: THE CAPTIONED IS A PPEAL BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2009 - 10 AND IT IS DIRECTED AGAINST THE ORDER DATED 3.2.2017 PASSED BY THE LD. CIT(A) . 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL IS AGAINST THE UPHOLDING THE FINDINGS OF THE AO THAT THAT PURC HASE S TO THE TUNE 2 I.T.A. NO 3615 /MUM/201 7 OF RS.7,33,67,528/ - WERE NON - GENUINE AND SUSTAINING THE ADDITION TO THE TUNE OF RS.25,67,863/ - BEING 3.5% OF THE BOGUS PURCHASES. 3 . FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESSEE WAS ASSESSED U/S 143(3) OF THE ACT VIDE ORDER DATED 30.11.2011 ASSESSING THE TOTAL INCOME AT RS.15,45,490/ - AS AGAINST THE RETURNED INCOME OF RS.13,19,760/ - . THEREAFTER THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 AND THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 27.3.2014 AFTER THE AO RECEIVED IN FORMATION FROM THE DGIT(INV) , MUMBAI AND ALSO FROM SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA THAT THE ASSESSEE IS A BENEFICIARY OF HAWALA PURCHASE S TO THE TUNE OF RS.7,33,67,528/ - . UPON VERIFICATION DURING THE COURSE OF RE - ASSESSMENT PROCEEDINGS , THE AO FOUND ON THE BASIS OF INFORMATION PROVIDED BY THE ASSESSEE THAT TIN AND OTHER PARTICULARS WERE BOGUS AND THE SUPPLIERS W ERE LISTED ON THE WEBSITE OF SALES TAX DEPARTMENT, GOM AS HAWALA OPERATORS. ACCORDINGLY, THE AO ASKED THE ASSESSEE TO F URNISH THE DETAILS OF THE PARTIES AND ALSO PROVE THE GENUINENESS OF THE PURCHASES BY FILING THE DETAILS OF PURCHASES, DELIVERY CHAL L ANS, STOCK REGISTER ETC. IN REPLY TO THE NOTICE, THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE PURCHASE S MADE FROM THE HA WALA PARTIES THERE W ERE CORRESPONDING SALES WHICH HA VE BEEN OFFERED TO TAX. THE REPLY OF THE ASSESSEE DID NOT FIND FAVOUR WITH THE AO AND H E ULTIMATELY APPLIED GP AT THE RATE OF 5% OF THE BOGUS PURCHASES BY TREATING THE SAME AS NON - GENUINE THEREBY MAK ING THE ADDITION OF RS.36,68,363/ - . 3 I.T.A. NO 3615 /MUM/201 7 4 . IN THE APPELLATE PROCEEDINGS, THE FAA , AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, PARTLY ALLOWED THE APPEAL OF THE ASSESSEE BY SUSTAINING THE ADDITION AT THE RATE OF 3.5% I.E.RS.25,69,863/ - AGGRIEVED BY T HE ORDER OF THE FAA, THE ASSESSEE HAS FILED THIS APPEAL BEFORE THIS TRIBUNAL. 5. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE RECORD S AS PLACED BEFORE US , WE FIND THAT THE ASSESSEE UNDOUBTEDLY HAS AVAILED HAWALA ENTRIES FROM THE HAWALA OPERATOR S WHICH W ERE TREATED AS BOGUS F OR WANT OF NON - VERIFICATION OF PURCHASES TO THE TUNE OF RS.7,33,60,528/ - AND THE AO ADDED TO THE INCOME OF THE ASSESSEE RS. 36,68,363/ - BEING GP AT THE RATE OF 5% ON THE SAID PURCHASE S . THE LD. CIT(A) PARTLY SUSTAINE D THE ADDITION AT 3.5% AS AGAINST THE 5% BY THE AO. HAVING CONSIDERED THE FACTS OF THE CASE AND THE RIVAL CONTENTIONS, W E FIND THAT THE COORDINATE BENCHES HAVE BEEN TAKING A CONSISTENT VIEW UNDER SAME FACTS THAT SOME PERCENTAGE ADDITION RANGING FROM 5% TO 12.50% OR A REASONABLE PERCENTAGE OF THE BOGUS PURCHASE SHOULD BE MADE TOWARDS SAVINGS WHICH THE ASSESSEE MAY HAVE MADE BY PURCHASING THE MATERIAL FROM GRAY MARKET THEREBY SAVING VAT AND OTHER INCIDENTAL TAXES. THEREFORE WE ARE OF THE OPINION THAT THE LD.CIT(A) HAS TAKEN A REASONED AND COGENT VIEW IN THE ASSESSEES CASE BY APPLYING 3.50% OF THE BOGUS PURCHASES AND WE FIND NO REASON TO INTERFERE IN THE SAME . ACCORDINGLY WE AFFIRM THE ORDER OF CIT(A) BY DISMISSING THE APPEAL OF THE ASSESSEE. 4 I.T.A. NO 3615 /MUM/201 7 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THE ORDER PRONOUNCED ON 17. 11.2017. S D SD ( D.T.GARASIA ) ( RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : . 17 . 1 1 .2017 SR.PS:SRL: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI