ITO WD 1(3), MUMBAI V. RUCHI MENTHOL P.LTD, DOMBIVALI

ITA 4487/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8613 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 29-06-2016
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: KETAN C VAJANI
• Keywords: Bogus purchase; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.4487/M/2016 (AY 2011 - 2012) ITA NO.4488/M/2016 (AY 2010 - 2011) ITO WARD - 1(3), 1 ST FLOOR, MOHAN PLAZA, WAYALE, MUMBAI 400 080. / VS. M/S. RUCHI MENTHOL PVT LTD, 104, MALHAR PALACE, NO.1, MANPADA ROAD, OPP. KASTURI PLAZA, DOMBIVALI (E) - 421201. ./ PAN : AACCR9361G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : MS. BEENA SANTOSH, DR / RESPONDENT BY : SHRI KETAN C VAJANI / DATE OF HEARING : 08.02.2017 / DATE OF PRONOUNCEMENT : 08 .02.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE COMMON ORDER OF THE CIT (A) FOR THE ASSESSMENT YEARS 2010 - 11 AND 2011 - 12. SINCE, THE ISSUES RAISED IN BOTH THESE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE O F CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. IN BOTH THESE APPEALS, REVENUE RAISED THE IDENTICAL GROUNDS. THEREFORE, FOR THE SAKE OF REFERENCE AND ADJUDICATION PURPOSE, GROUNDS RAISED BY THE REVENUE IN ITS APPEAL FOR THE AY 2010 - 2011 ARE EXTRACTED AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD CIT (A) HAS ERRED IN RELYING ON THE DECISION OF SUPREME COURT IN THE CASE OF KANCHWALA GEMS VS. JCIT 288 ITR 10 (SC) AND HONBLE HIGH COURTS DECISION IN THE CASE OF VIJAY PROTEIN, SANJAY OIL CAKE INDUSTRIES ETC. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT (A) ERRED IN NOT FOLLOWING THE ORDER OF THE ITAT, PUNE IN ITA NO. 1411 - 1415 DATED 20 .02.2015 IN THE CASE OF M/S. KOLTE PATIL DEVELOPERS LTD WHEREIN 100% ADDITION OF BOGUS PURCHASES WAS CONFIRMED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT (A) HAS ERRED IN GIVING RE LIEF TO THE ASSESSEE TO THE EXTENT OF SUPPRESSED GP OUT OF TOTAL BOGUS PURCHASES EVEN THOUGH 2 (I) THE ASSESSEE COULD NOT PRODUCE PRIMARY EVIDENCES LIME OCTROI RECEIPTS, DELIVERY CHALLAN ETC EVIDENCE TO PROVE THE GENUINENESS OF THE PURCHASES BEFORE THE AO AN D BEFORE THE CIT (A). (II) THE AFFIDAVITS FILED BY THE ENTRY PROVIDERS BEFORE SALES TAX AUTHORITIES CANNOT BE IGNORED HAVING EVIDENTIARY VALUE. 4. THE ORDER OF THE CIT (A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 3. AT THE OUTSET , LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE, WHICH ARE IDENTICAL FOR THE BOTH THE AYS UNDER CONSIDERATION, AND FILED A WORKING SHOWING THE CALCULATION OF TAX EFFECT ON THE RELIEF ALLOWED BY THE CIT (A) FOR BOTH THE AYS . THE DETAILS OF THE SAID WORKING OF TAX EFFECT ARE EXTRACTED AS UNDER: - ASSESSMENT YEAR 2010 - 11 (ITA NO. 4488/M/2016): (I) TOTAL INCOME COMPUTED BY THE AO RS. 21,04,700/ - (II) RELIEF ALLOWED BY CIT (A) RS. 15,48,978/ - (III) TAXABLE INCOME AFTER GIVING EFFECT TO CIT (A) RS. 5,55,722/ - TAX RE LIEF ALLOWED BY CIT (A) @ 30% RS. 4,64,693/ - ADD: EDUCATION CESS @ 3% RS. 13,941/ - RS. 4,78,634/ ASSESSMENT YEAR 2011 - 12 (ITA NO. 4488/M/2016): (I) TOTAL INCOME COMPUTED BY THE AO RS. 32,38,176/ - (II) RELIEF ALLOWED BY CIT (A) RS. 28,33,454 / - (III) TAXABLE INCOME AFTER GIVING EFFECT TO CIT (A) RS. 4,04,722 / - TAX RE LIEF ALLOWED BY CIT (A) @ 30% RS. 8,50,036 / - ADD: EDUCATION CESS @ 3% RS. 25,501 / - RS. 8,75,537 / - 4. FROM THE ABOVE, LD COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT THE TAX EFFECT IN BOTH THESE CASES IS BELO W RS. 10 LAKHS. THEREFORE, THESE CASES ARE COVERED BY THE CBDT CIRCULAR NO.21/2015, DATED 10.12.2015 WHICH IS RELEVANT FOR THE PROPOSITION THAT THE APPEALS FILED BY THE REVENUE WITH A TA X EFFECT OF RS. 10 LAKHS AND BELOW ARE TO BE EITHER DISMISSED BY THE TRIBUNAL AS NOT MAINTAINABLE OR NOT PRESSED BY THE REVENUE. 5 . AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OPINION, CONSIDERING THE LOW TAX EFFECT INVOLVED IN THE PRESENT CASE S IE BELOW RS. 10 LAKHS, THE INSTANT APPEAL S FILED BY THE REVENUE ARE REQUIRED TO BE DISMISSED SINCE, THE SAME ARE NOT MAINTAINABLE. I ORDER ACCORDINGLY. 3 6 . IN THE RESULT, BOTH THE APPEAL S FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 8 T H FEBRUARY, 2017. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 08.02.2017 . . ./ OKK , 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI