ACIT -19(2), MUMBAI V. VILASINI VAMAN POOJARY, MUMBAI

ITA 411/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2295 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 03-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 17-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G M DASS
• Section: 133A; 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER / I .T.A. NO S . 411 & 412/MUM/2014 ( / ASSESSMENT YEAR S : 2005 - 06 & 2007 - 08 A N D / I .T.A. NO .1641/MUM/2014 ( / ASSESSMENT YEAR :2006 - 07 THE ACIT - 19(2), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400 012 / VS. MS. VILASINI VAMAN POOJARY, FLAT NO. 1004, BHOOMI TOWERS, B - OPP. JAIN TEMPLE, SANTACRUZ(E), MUMBAI - 400 055 ./ ./ PAN/GIR NO. : ACCPP 3370L ( / APPELLANT ) .. ( / RESPONDENT ) / DEPARTMENT BY: SHRI G.M. DASS / ASSESSEE BY: SHRI HIRO RAI / DATE OF HEARING : 0 3 . 1 2 .2015 / DATE OF PRONOUNCEMENT : 0 3 .12 .2015 / O R D E R PER BENCH : TH ESE ARE APPEAL S BY THE REVENUE AGAINST THE ORDER S OF THE LD. CIT(A) - 18 & CIT(A) - 30 , MUMBAI D ATED 20 . 1 1.201 3 & 7.1.2014 RESPECTIVELY PERTAINING TO ASSESSMENT YEAR S 200 5 - 0 6, 2007 - 08 & 2006 - 07 . IN ALL THESE APPEALS, THE GRIEVANCE OF THE REVENUE IS ITA. NO S. 411, 412 & 1641/M/14 . 2 COMMON THOUGH QUANTUM MAY D IFFER AND IT RELATES TO THE DELETION OF THE ADDITION MADE ON ACCOUNT OF PURCHASES ALLEGED TO BE BOGUS. AS THE FACTS RELATING TO THE ADDITION ARE COMMON IN ALL THE YEARS UNDER CONSIDERATION, WE ARE PROCEEDING WITH THE FACTS FOR ASSESSMENT YEAR 2005 - 06. 2. THE ENTIRE DISPUTE REVOLVES AROUND THE STATEMENT OF ONE SHRI RAKESHKUMAR M. GUPTA PROPRIETOR OF M/S. MNOJ MILLS, M/S. ASTHA SILK INDUSTRIES, SHREE RAM SALES & SYNETHETICS & DEV - VANI INDUSTRIES WHICH WAS RECORDED BY THE AO ITO 14(3)(2). IN HIS STATEMENT SHRI RAKESHKUMAR M. GUPTA ACCEPTED THAT HE IS GIVING ACCOMMODATION BILLS IN RESPECT OF PURCHASES FROM HIS PROPRIETARY CONCERN. THE ASSESSEE IS FOUND TO BE ONE OF THE BENEFICIARIES OF THE SO CALLED ACCOMMODATION BILLS. 2.1. ON IDENTICAL SET OF FACTS, SIMILAR ADDITIONS WERE MADE IN THE CASE OF M/S. PRAMIT TEXTILES, M/S. NEETA TEXTILES , M/S. C. CHOTALAL & CO ., AND M/S. JITENDRA HARSHADKUMAR TEXTILES PVT. LTD. IN ALL THESE CASES, THE MATTER TRAVELLED UPTO THE TRIBUNAL AND IN ALL THESE CASES, THE TRIBUNAL HAS D ELETED THE IMPUGNED ADDITIONS. FOR E.G. IN THE CASE OF M/S. JUTENDRA HARSHADKUMAR TEXTILES IN ITA NO.S 771 & 2211/M/2011, THE TRIBUNAL AT PARA - 8 ON PAGE - 5 HAS OBSERVED AS UNDER: WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF MATERIA L PLACED BEFORE US. IT WILL BE RELEVANT TO REPRODUCE THE LETTER RECEIVED BY THE AO FROM SHRI RAKESH KUMAR GUPTA, WHICH IS ALSO REPRODUCED IN THE ASSESSMENT ORDER: 1 AM IN RECEIPT OF YOUR SUMMONS U/S. 131 OF THE I.T.ACT. 1961 IN THE CASE OF M/S. JITEND RA HARSHAD KUMAR TEXTILE PVT. LTD. ASKING ME TO ITA. NO S. 411, 412 & 1641/M/14 . 3 ATTEND BEFORE YOUR GOODSELF WITH THE DETAILS OF MY ACCOUNT WITH THE SAID M/S. JITENDRA HARSHAD KUMAR TEXTILE PVT. LTD. FOR A.Y.2002 - 03 & 2007 - 08. AS YOU ARE AWARE THAT MY ASSESSING OFFICER HAD RECORDED ALLEG ED STATEMENT U/S. 133A AND 131 OF THE I.T.ACT. 1961 1 HAVE BEEN RECEIVING WITNESS SUMMONS FROM ALL FOUR CORNERS OF THE CITY ON THE GROUND THAT I HAVE GIVEN ACCOMMODATION BILL, THOUGH I HAVE DENIED THE CONTENT OF THE STATEMENTS RECORDED BY A.O. U/S. 133A & 131 VIDE MY LETTER DATED 27.4.2009 AND MY AFFIDAVIT DATED 20.2.2009 SUBMITTED TO WARD 14(3)(2). IT IS PHYSICALLY IMPOSSIBLE FOR ME TO ATTEND BEFORE VARIOUS INCOME TAX AUTHORITIES, AS I AM NOT FEELING WELL, IT WILL NOT POSSIBLE FOR ME TO ATTEND BEFORE YOUR GOODSEIF IN RESPONSE TO YOUR ABOVE MENTIONED SUMMONS. AS REGARDS M/S. JITENDRA HARSHAD KUMAR TEXTILES PVT. LTD. IS CONCERNED. I HAVE ALREADY GIVEN MY AFFIDAVIT WHEREIN I HAVE SPECIFICALLY STATED THAT I HAVE SOLD THE GOODS TO M/S. JITENDRA HARSHAD KUMAR T EXTILES P. LTD. AND THE CONSIDERATION IS RECEIVED TO ME BY CROSS ORDER CHEQUE. COPY OF THE SAID LEDGER ACCOUNT IS ALREADY SUBMITTED THE DEPARTMENT. FROM THE ABOVE LETTER IT IS CLEAR THAT THE SAME WAS WRITTEN IN RESPONSE TO NOTICE ISSUED BY THE AO. NOT O NLY SHRI RAKESH KUMAR GUPTA HAS STATED THAT HE HAS RETRACTED FROM THE STATEMENT RECORDED DURING THE SURVEY BUT ALSO FILED AN AFFIDAVIT DATED 20/2/2009 AND LETTER DATED 27/4/2009 TO DENY THE STATEMENT MADE DURING THE SURVEY UNDER SECTION 133A. HE HAS FURTH ER CONFIRMED THAT THE SALES MADE BY THE ASSESSEE WERE EFFECTED AND THE CONSIDERATION WAS RECEIVED BY CROSS ORDER CHEQUES. THUS IT IS CLEAR THAT THERE IS NO MATERIAL ON RECORD TO SAY THAT THE PURCHASES MADE BY THE ASSESSEE FROM THE SAID CONCERN WERE BOGUS EXCEPT THE GENERAL STATEMENT RECORDED BY THE DEPARTMENT IN THE ITA. NO S. 411, 412 & 1641/M/14 . 4 CASE OF SHRI RAKESH KUMAR GUPTA, WHICH WAS LATER ON RETRACTED. IN ABSENCE OF ANY MATERIAL BROUGHT ON RECORD AGAINST THE SUBMISSIONS MADE BY SHRI RAKESH KUMAR GUPTA IN HIS LETTER DATED 20/1 2/2009 FILED BEFORE THE AO OF THE ASSESSEE THE ADDITION, IF ANY, MADE IN THE CASE OF THE ASSESSEE WILL BE BASED ON PRESUMPTION ONLY AND IT CANNOT BE SUSTAINED IN THE EYES OF LAW. AS AGAINST THAT ASSESSEE HAS SUBMITTED VARIOUS EVIDENCES TO SHOW THAT TH E ACTUAL DELIVERY OF THE GOODS WAS RECEIVED BY THE ASSESSEE FROM THE SAID PARTY WHICH HAS NOT BEEN DISCARDED BY THE AO. THE ADDITION SUSTAINED BY LD. CIT(A) IS ALSO ON PRESUMPTION BASIS. THEREFORE, KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE , WE ARE OF THE OPINION THAT ADDITIONS MADE BY THE AO DESERVE TO BE DELETED IN ITS ENTIRETY. WE DECIDE ACCORDINGLY. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED AND APPEAL FILED BY THE ASSESSEE IS ALLOWED. 2.2. THIS ORDER OF THE TRIBUNAL WAS FOLLOWED BY THE CO - ORDINATE BENCH IN THE CASE OF M/S. C. CHOTALAL & CO. IN ITA NO. 3960 TO 3967/M/2012, ITA NOS. 4022 TO 4024/M/2012, ITA NO. 4025/M/2012 AND ITA NOS. 3944, 3995 & 5065/M/2012 WHICH WAS ALSO FOLLOWED IN THE CA SE OF M/S. PRAMIT TEXTILES IN ITA NO S . 3948 TO 3953/M/2012, ITA NOS. 4012 TO 4015 , ITA NOS. 4020 TO 4021/M/2012 AND ALSO IN THE CASE OF SMT. NEENA M. LEKHI IN ITA NO. 1608/M/2013. SINCE THE IMPUGNED ADDITIONS HAVE BEEN DELET ED IN THE PLETHORA OF CASES DECIDED BY THE TRIBUNAL (SUPRA) IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE, RESPECTFULLY FOLLOWING THE DECISIONS OF THE CO - ORDINATE BENCH, WE DECLINE TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 3. IN THE RESULT, A L L THESE APPEALS FILED BY THE REVENUE ARE DISMISSED. ITA. NO S. 411, 412 & 1641/M/14 . 5 4 . BEFORE CLOSING, THE LD. DEPARTMENTAL REPRESENTATIVE HAS STRONGLY RELIED UPON THE DECISIONS OF THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF CIT VS BHOLANATH POLY FAB PVT. LTD355 ITR 290 AND IN THE CASE OF VIJAY M. MISTRY. HOWEVER, WE FIND THAT THE FACTS IN THESE CASES ARE TOTALLY DIFFERENT FROM THE FACTS OF THE CASE IN HAND. AS MENTIONED ELSEWHERE, THE TRIBUNAL IN PLETHORA OF DECISIONS (SUPRA) HAVE DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE, TH EREFORE, NO INTERFERENCE IS CALLED FOR. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 3 RD DECEMBER , 2015 . SD/ - SD/ - ( PAWAN SINGH ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 3 RD DECEMBER , 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI