ITO-22(3)(5), Mumbai V. LATE SMT. URMILLA KANJIBHAI PATEL, Mumbai

ITA 4093/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0821 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Section: 143(1); 139(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 40 93 /MUM. /201 9 ( ASSESSMENT YEAR : 20 09 10 ) ITA NO. 4094 /MUM. /2019 ( ASSESSMENT YEAR : 20 10 11 ) ITA NO. 4095 /MUM. /2019 ( ASSESSMENT YEAR : 20 11 12 ) INCOME TAX OFFICER WARD 22(3 )( 5 ), MUMBAI . APPELLANT V/S LATE SMT. URMILLA KANJIBHAI PATEL 3, GIRNAL CHS LTD., CHAPEL LANE SANTACRUZ (W) MUMBAI 400 012 PAN AADPK9301P . RESPONDENT REVENUE BY : S HRI SANJAY J. SETHI ASSESSEE BY : NONE DATE OF HEARING 07 .1 2 .2020 DATE OF ORDER 17.12.2020 O R D E R CAPTIONED APPEALS HAVE BEEN FILED BY THE REVENUE CHALLENGING THE COMMON ORDER DATED 29 TH MARCH 2019, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 34, MUMBAI, FOR THE ASSESSMENT YEAR S 2009 10, 2010 11 AND 2011 12. 2. WHEN THE APPEAL S WERE CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE RESPONDENT ASSESSEE TO REPRESENT THE CASE . CONSIDERING 2 LATE SMT. URMILLAKANJIBHAI PATEL THE NATURE OF DISPUTE, I PROCEED TO DISPOSE OFF THE APPEALS EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. BRIEF FACTS ARE, THE ASSESSEE , SINCE DECEASED , WAS AN INDIVIDUAL AND WAS ENGAGED IN THE BUSINESS OF MANUFACTU RER AND CONTRACTOR IN ENGINEERING GOODS. FOR THE ASSESSMENT YEAR S UNDER DISPUTE, THE ASSESSEE HAD FILED HER RETURN OF INCOME IN REGULAR COURSE AS PER SECTION 139(1) OF THE ACT. THE RETURN S OF INCOME FILED BY THE ASSESSEE WERE INITIALLY PROCESSED UNDER SECT ION 143(1) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE SALES TAX DEPARTMENT THAT CERTAIN PURCHASES MADE BY THE ASSESSEE IN RELEVANT ASSESSMENT YEARS ARE NON GENUINE AS THE CONCERNED SELLING DEALERS HAVE BEEN IDENTIFIED AS HAWALA OPERATOR S PROVIDING ACCOMMODATION BILLS. ON THE BASIS OF SUCH INFORMATION, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT S UNDER SECTION 147 OF THE ACT. IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO FURNISH C ERTAIN DOCUMENTARY EVIDENCES TO PROVE THE GENUINENESS OF PURCHASES. AS OBSERVED BY THE ASSESSING OFFICER, THE ASSESSEE FURNISHED LEDGER ACCOUNT COPY OF THE SELLERS, PURCHASE BILLS AND BANK STATEMENT SHOWI NG PAYMENT MADE THROUGH CHEQUES. HOWEVER , THE ASSESS EE WAS UNABLE TO FURNISH TRANSPORTATION RECEIPTS, DELIVERY CHALLANS, LORRY RECEIPTS AND STOCK REGISTER. THEREFORE, THE 3 LATE SMT. URMILLAKANJIBHAI PATEL ASSESSING OFFICER TREATED THE PURCHASES AS NON GENUINE. HOWEVER, TAKING INTO ACCOUNT THE GROSS PROFIT RATE DECLARED BY THE ASSESSEE IN TH E RELEVANT ASSESSMENT YEAR S , HE MADE THE ADDITION IN DIFFERENT ASSESSMENT YEARS AS UNDER: A.Y. PROFIT RATE ADOPTED ADDITION MADE 2009 10 33% ` 15,651 2010 11 33% ` 9,83,654 2011 12 26% ` 7,72,731 4. THE ASSESSEE CONTESTED THE AFORESAID ADDITION S BEFORE THE FIRST APPELLATE AUTHORITY. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL AVAILABLE ON RECORD AND RELYING UPON CERTAIN JUDICIAL PRECEDENTS, LEARNED COMMISSIONER (APPEALS) ULTIMATELY RESTRICTED THE ADDITI ON TO 25% OF THE NON GENUINE PURCHASES IN ALL THE ASSESSMENT YEARS UNDER DISPUTE. 6. HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, ON THE BASIS OF CERTAIN INFORMATION RECEIVED FR OM THE SALES TAX DEPARTMENT, THE ASSESSING OFFICER HAS TREATED CERTAIN PURCHASES MADE BY THE ASSESSEE AS NON GENUINE. HOWEVER, INSTEAD OF DISALLOWING THE ENTIRE PURCHASES, HE HAS RESTRICTED THE DISALLOWANCE TO CERTAIN PERCENTAGE OF 4 LATE SMT. URMILLAKANJIBHAI PATEL THE ALLEGED NON GENUINE PURCHASES. IT IS FURTHER SEEN FROM RECORD THAT THE ASSESSEE DID FURNISH SOME DOCUMENTARY EVIDENCE IN SUPPORT OF THE PURCHASES MADE. FURTHER, THE SALES DECLARED BY THE ASSESSEE HAVE NOT BEEN DOUBTED BY THE ASSESSING OFFICER. THEREFORE, THE DISPUTE/ DOUBT IF ANY IS ONLY WITH REGARD TO THE SOURCE OF PURCHASES. FOR THIS REASON ALONE, THE ASSESSING OFFICER HAS NOT DISALLOWED THE ENTIRE PURCHASES BUT HAS RESTRICTED THE DISALLOWANCE TO THE PROFIT ELEMENT E MBEDDED IN SUCH PURCHASES. L EARNED COMMISSIONER (APPEALS) , T HOUGH , HAS AGREED THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF PURCHASES CONCLUSIVELY, HOWEVER, HE HAS ONLY INTERFERED WITH THE QUANTUM OF DISALLOWANCE BY RESTRICTING IT TO 25% OF THE NON GENUINE PURCHASES. IN MY CONSIDERED OPINION, THE AFORESA ID DECISION OF LEARNED COMMISSIONER (APPEALS) IS FAIR AND REASONABLE, HENCE, NEEDS TO BE UPHELD. ACCORDINGLY, I DO SO BY DISMISSING THE GROUNDS RAISED BY THE REVENUE FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. 7. IN THE RESULT, APPEALS ARE DISMISSED. OR DER PRONOUNCED IN THE OPEN COURT ON 17.12.2020 SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 17.12.2020 5 LATE SMT. URMILLAKANJIBHAI PATEL COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI