DCIT 25(2), NAVI MUMBAI V. PRAVIN R. SHAH, MUMBAI

ITA 3737/MUM/2010

• Counselvise Citation: 373719914 RSA 2010
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURESH KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER A ND SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER ITA NO.3737/MUM./2010 (ASSESSMENT YEAR : 2007-08 ) DATE OF HEARING: 25.4.2011 DY. COMMISSIONER OF INCOME TAX CIRCLE-25(2), C-11, 1 ST FLOOR PRATYAKSHA KAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400 092 .. APPELLANT V/S SHRI PRAVIN R. SHAH 605, SHRADDHA RESIDENCY CHANDAVARKAR LANE BORIVALI (W), MUMBAI 400 092 .... RESPONDENT REVENUE BY : MR. SURESH KUMAR ASSESSEE BY : NONE O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE REVENUE, IS DIRECTED AGAIN ST THE IMPUGNED ORDER DATED 23 RD FEBRUARY 2010, PASSED BY THE COMMISSIONER (APPEALS ) XXXV, MUMBAI, FOR ASSESSMENT YEAR 2007-08. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE ISS UANCE OF NOTICE BY RAPD WHICH WAS RETURNED UN-SERVED BY THE POSTAL AUT HORITIES WITH A REMARK UNCLAIMED . THERE IS NO PETITION FOR ADJOURNMENT EITHER. UNDE R THESE CIRCUMSTANCES, THE BENCH WAS OF THE VIEW THAT THE R EVENUES APPEAL CAN BE DISPOSED OFF EX-PARTE, QUA THE RESPONDENT ASSESSEE AFTER HEARING THE LEARNED PRAVIN R. SHAH ITA NO.3737/MUM./2010 2 DEPARTMENTAL REPRESENTATIVE. CONSEQUENTLY, WE NOT P ROCEED TO DISPOSE OFF THE APPEAL ON MERIT. 3. HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE, MR. SURENDER KUMAR, SR. D.R. GROUND NO.1 RELATES TO DELETION OF BOGUS P URCHASES. THE COMMISSIONER (APPEALS) HAS, AT PARA-3.3 OF HIS ORDE R, BROUGHT OUT THE ISSUE CLEARLY. AT PAGE-6, THE COMMISSIONER (APPEALS) OBSE RVED AS FOLLOWS. 3 .3 . FURTHER IT IS NOTICED THAT THE APPELLANT IS ONLY A TRADER IN CONSTRUCTION MATERIAL AND MATERIAL PURCHASED ARE SO LD IMMEDIATELY. THE REPRESENTATIVE WAS ABLE TO IDENTIFY THE PURCHAS ES FROM THE ABOVE PARTIES WITH CORRESPONDING SALES WITH REFERENCE TO THE TRUCK NUMBER, PURCHASE INVOICES AND SALES BILLS SUBMITTED IN THE PAPER BOOK FROM WHICH IT IS SEEN THAT THE SAME MATERIALS PURCHASED WERE SOLD DIRECTLY AND IT COULD BE CONFIRMED BY THE TRUCK NUMBERS. THE SAME TRUCK WHICH TOOK DELIVERY FROM THE PURCHASER DELIVERED THE MATE RIALS TO THE SELLER. THE ASSESSING OFFICER NEVER EXAMINED THE BOOKS OF A CCOUNT IN DETAIL INCLUDING BANK STATEMENT, PURCHASE INVOICES AND SAL E BILLS BUT MERELY BECAUSE THE LETTER ISSUED TO FEW PARTIES RETURNED B ACK, HE CONCLUDED THAT THE ENTIRE PURCHASES WERE BOGUS AND MADE ADDIT ION. I FIND THAT THIS APPROACH OF THE ASSESSING OFFICER IS TOTALLY I NCORRECT. THE ASSESSING OFFICER OUGHT TO HAVE FIRST CONCENTRATED AND CONSIDERED THE EVIDENCES AVAILABLE IN THE BOOKS OF ACCOUNT OF THE APPELLANT BEFORE DRAWING ANY ADVERSE INFERENCE AGAINST THE APPELLANT WHICH WAS NOT DONE BY HIM. IN THE CIRCUMSTANCES, I FIND THAT THE ADDITION IS NOT JUSTIFIED AND THE SAME IS DELETED. 4. FURTHER, IT IS SEEN THAT THE ASSESSEE HAS MADE ALL THE PAYMENTS BY CROSSED CHEQUES. THE ASSESSING OFFICER HAS WRITTEN LETTER TO M/S. RAJ KIRAN SAND DEALERS. THE FACT IS THAT THE ASSESSEE HAS NOT PURCHASED ANY MATERIAL FROM THAT CONCERN AND HAD ONLY PURCHASED MATERIAL F ROM ONE M/S. KIRAN SAND DEALERS. WHEN THE AMOUNTS OF ACTUAL PURCHASES WERE LESSER, THE ASSESSING OFFICER COMMITTED BLUNDER IN TAKING THE F IGURES AT A MUCH HIGHER. FOR ALL THESE REASONS, WE UPHOLD THE ORDER OF THE C OMMISSIONER (APPEALS) AND DISMISS THE GROUND OF APPEAL RAISED BY THE REVE NUE. 5. NOW, COMING THE SECOND GROUND WHICH RELATES TO DISA LLOWANCE OF LORRY DIESEL EXPENSES BEING DELETED BY THE ASSESSING OFFI CER, WE FIND THAT THE COMMISSIONER (APPEALS) HAS TAKEN STATISTICS OF THRE E YEARS AND COME TO THE CONCLUSION THAT THE PERCENTAGE OF LORRY DIESEL EXPE NSES TO THE TURNOVER PRAVIN R. SHAH ITA NO.3737/MUM./2010 3 REMAINED WITHIN THE RANGE OF 4% AND 5%. WE FIND NO INFIRMITY IN THE FINDINGS OF THE COMMISSIONER (APPEALS). CONSEQUENTL Y, REVENUE FAILS ON THIS GROUND. 6. IN THE RESULT, REVENUES APPEAL DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.4.2011. SD/- ASHA VIJAYRAGHAVAN JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 27.4.2011 COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, C BENCH, ITAT, MUMBAI TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI