ITO WARD-4(1), THANE V. SHRI AYODHYA BAJINATH NAYAK, THANE

ITA 426/MUM/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7590 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC-1
• Assessment Year: 2010-2011
• Appeal Filed On: 25-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘SMC‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER & SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA No.426/Mum/2021 (Asse ssment Year :2010-11) Income Tax Officer, Ward-4(1), Thane Room No.03, A-Wing 6 th Floor, Ashar IT Park Wagle Industrial Estate Thane (W)- 400 604 Vs. Shri Ayodhya Baijnath Nayak Prop. Of M/s. Disha Impex B-208, Avani Apartment, Shashtri Nagar, Ambadi Road Vasai(W) – 401 303 PAN/GIR No.AISPN0309H (Appellant) .. (Respondent) Revenue by Shri Prasoon Kabra Assessee by None Date of Hearing 23/11/2021 Date of Pronouncement 25/11/ 2021 आदेश / O R D E R PER M. BALAGANESH (A.M): This appeal in ITA No.426/Mum/2021 for A.Y.2010-11 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-3, Mumbai in appeal No.10026/2015-16 dated 28/02/2020 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 28/02/2020 by the ld. Commissioner of Income Tax (Appeals)-3, Thane (hereinafter referred to as ld. AO). ITA No.426/Mum/2021 Shri Ayodhya Bajinath Nayak 2 2. At the outset we find that the appeal ia time barred by 320 days. We find that assessee has filed a delay condonation petition explaining the fact that due to Covid-19 pandemic lockdown was imposed from 24/03/2020 and by placing reliance on the Government of India of notification No.218979 dated 31/03/2020 in Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance 2020 (No.2 of 2020) dated 31/3/2020 as per Clause 3(1)(b) extending the time limit specified in Income Tax Act which falls during the period from 20 th day of March 2020 to 29 th June 2020 for the purpose of filing appeal till 30/06/2020 or such other date as the Central Government by notification specify in this behalf. Subsequently, the Government vide Notification No.35/2020 dated 24/06/2020, has extended the said time limit up to 31/03/2021. In view of the same, we are inclined to condone the delay of 320 days in filing the appeal of the assessee and admit the appeals for adjudication. 3. The only effective issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in adding only the profit element embedded in the value of ingenuine purchases @25% as against 100% made by the ld. AO. 4. None appeared on behalf of the assessee. We have heard ld. DR and perused the materials available on record. We find that assessee is engaged in the business of printing in the name and style of M/s. Vipul Printers. Pursuant to the information received from Sales Tax department, Government of Maharashtra, the assessment of the assessee was reopened u/s.147 of the Act after due recording of reasons for reopening the assessment wherein it was observed that assessee had made purchases from certain tainted dealers. Accordingly, the ld AO held that ITA No.426/Mum/2021 Shri Ayodhya Bajinath Nayak 3 the purchases made from such parties were ingenuine. The ld. AO based on this information proceeded to make addition @100% of value of purchases made by the assessee from the tainted dealer. The ld. CIT(A) however, observed that though the assessee could not satisfactorily explain the genuineness of the purchases made from the aforesaid tainted party, still the assessee has produced the copy of ledger extracts, copy of stock register, copy of sales bills with delivery challans etc., Since the corresponding sales made out of disputed purchases were not doubted by the ld. AO, only the profit element could be brought to tax, despite the fact that the notice issued u/s.133(6) of the Act remain uncomplied. Accordingly, he estimated the profit element @25% of the value of purchases made from the grey market. Aggrieved by this order, only the Revenue is in appeal before us and assessee has not preferred any appeal before us. 5. We find that this Tribunal in series of decisions has been consistently holding the profit element embedded in the value of such disputed purchases to be at 12.5% depending upon the industry in which the assessee is engaged in. But the ld. CIT(A) had already estimated 25% which is actually higher than 12.5% being regularly estimated by this Tribunal and since the assessee has not preferred any appeal against the order of the ld. CIT(A) before us, we do not deem it fit to interfere in the order of the ld. CIT(A) and accordingly, the grounds raised by the Revenue are dismissed. ITA No.426/Mum/2021 Shri Ayodhya Bajinath Nayak 4 6. In the result, appeal of the Revenue is dismissed. Order pronounced on 25/11 /2021 by way of proper mentioning in the notice board. Sd/- (AMARJIT SINGH) Sd/- (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 25/ 11/2021 KARUNA, sr.ps Copy of the Order forwarded to : BY ORDER, (Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//