DCIT 19(3), MUMBAI V. RAJENDRA KUMAR CHHABRA, MUMBAI

ITA 4563/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1938 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 13-04-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 07-06-2013
• Court: TRIBUNAL
• Department Lawyers: DR D S RATNAM
• Keywords: Bogus purchase
• Section: 143(3); 69

Judgement Text

, , D , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , , , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4563/MUM/2013 ASSESSMENT YEAR: 2003-04 DCIT 19(3) 3 RD FLOOR, PIRAMAL CHAMBER, R.NO.305, LALGAUG, PAREL MUMBAI -400012 / VS. SHRI RAJENDRA KUMAR CHHABRA, EVERGREEN, GROUND FLOOR, FLAT NO. C/5-A, PERRY ROAD, BANDRA (W) MUMBAI-400 050 (REVENUE) (RESPONDENT) P.A. NO.AABPC3377M ITA NO.4562/MUM/2013 ASSESSMENT YEAR: 2004-05 DCIT 19(3) 3 RD FLOOR, PIRAMAL CHAMBER, R.NO.305, LALGAUG, PAREL MUMBAI -400012 / VS. SHRI RAJENDRA KUMAR CHHABRA, EVERGREEN, GROUND FLOOR, FLAT NO. C/5-A, PERRY ROAD, BANDRA (W) MUMBAI-400 050 (REVENUE) (RESPONDENT) P.A. NO.AABPC3377M ITA NO.4497/MUM/2013 ASSESSMENT YEAR: 2009-10 ITO 19(3)(2) 3 RD FLOOR, PIRAMAL CHAMBER, R.NO.306, LALGAUG, PAREL MUMBAI -400012 / VS. SHRI RAJENDRA KUMAR CHHABRA, EVERGREEN, GROUND FLOOR, FLAT NO. C/5-A, PERRY ROAD, BANDRA (W) MUMBAI-400 050 SHRI RAJENDRA KUMAR 2 (REVENUE) (RESPONDENT) P.A. NO.AABPC3377M REVENUE BY DR. D. S. RATNAM (DR ) RESPONDENT BY SHRI PRAKASH PANDIT (AR) / DATE OF HEARING : 26/11/2015 / DATE OF ORDER: 18/12/2015 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THESE APPEAL HAVE BEEN FILED BY THE REVENUE AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- 30, MUMBAI {(IN SHORT CIT(A)}, ORDER DATED 01.03.2013 FOR THE ASSESSMENT YEARS 2003-04, 2004-05 & 2009-10 PASSED AGAINST THE ASSESSMENT ORDERS PASSED BY THE ASSESSI NG OFFICER (IN SHORT AO) U/S 143(3) R.W.S. 147 OF THE ACT, I NVOLVING COMMON ISSUES. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI PRAKASH PANDIT, AUTHORISED REPRESENTATIVE (AR) ON BEHALF OF THE ASSESSEE AND BY DR. D. S. RATNAM, DEPARTMENT AL REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. 3. DURING THE COURSE OF HEARING, IT WAS SUBMITTED BY THE LD. COUNSEL THAT ISSUES INVOLVED IN THESE APPEALS ARE C OVERED BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FO R A.YS. 2002-03 & 2007-08. ON THE OTHER HAND, LD. DR HAS AL SO SHRI RAJENDRA KUMAR 3 ACCEPTED THAT THE ISSUES STANDS COVERED WITH THE OR DER OF THE HONBLE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER YEARS. 3.1. IT IS NOTED BY US THAT THE SOLITARY ISSUE INVOLVED IN THIS APPEAL IS WITH REGARD TO ADDITION MADE BY THE AO ON ACCOUNT OF BOGUS PURCHASE ON THE BASIS OF STATEMENT OF SHRI . R.K. GUPTA. IT IS ALSO NOTED BY US THAT THE AO, WHILE MA KING ADDITION IN THE ASSESSMENT ORDER, HAS RELIED UPON H IS ORDERS OF EARLIER YEARS. IT IS FURTHER NOTED THAT THE TRIBUNA L IN ASSESSEES OWN CASE VIDE ORDER DATED 21.04.2014 FOR A.YS. 2002 -03 & 2007-08 (ITA NO.3529/MUM/2011 AND ITA NO.3528/MUM/2011) HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. THE RELEVANT FINDINGS OF THE ORDER OF THE TRIBUNAL ARE GIVEN BELOW: 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE VOLUMINOUS PAPER BOOKS CONTAINING ESSENTIAL RECORDS ON ONE SIDE AND COMPENDIUM OF DECISIONS ON THE OTHER. WE HAVE ALSO PERUSED THE ORDERS OF THE COORDINATE BENC H OF ITAT, MUMBAI IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEXTILES P LTD (SUPRA) AND THE DECISION OF TH E ITAT, HYDERABAD BENCH IN THE CASE OF M/S. NEW MEENA BAZAR INTERNATIONAL P LTD (SUPRA). IN IS AN UNDISPUTED F ACT THAT THE STATEMENT RECORDED FROM MR. RAKESH KUMAR GUPTA AND HIS FAMILY MEMBERS IS THE SOLE BASIS FOR MAKING ADD ITIONS IN THE CASES OF SHRI RAKESH KUMAR GUPTA, MRS. HEMA R GUPTA AND MR. MOHIT R GUPTA, WHICH ARE ALREADY ADJUDICATED BY THE TRIBUNAL. IT IS A CONSISTENT VI EW OF THE SHRI RAJENDRA KUMAR 4 TRIBUNAL THAT IN THE ABSENCE OF ANY OTHER CORROBORA TING EVIDENCE, THE STATEMENTS ALONE CANNOT BE BASIS FOR MAKING ADDITIONS AND SUCH ADDITIONS ARE NOT SUSTAINABLE. T HIS THE CASE OF THIRD PARTY GIVING THE STATEMENT, WHICH HAS THE IMPLICATIONS ON THE ASSESSEE. IN SUCH CASE, THERE IS A NEED FOR INCRIMINATING MATERIAL FOR MAKING A SUSTAINABLE ADDITION. FURTHER, WE FIND THAT THE CONCERNS BELON GING TO MR. RAKESH KUMAR GUPTA AND FAMILY ARE GENUINE. PAR A 5 OF THE ORDER OF THE TRIBUNAL IN THE CASE OF M/S. NE W MEENA BAZAR INTERNATIONAL P LTD (SUPRA) IS RELEVANT HERE AND THE SAME READS AS UNDER: 5. WE HAVE HEARD THE LD DEPARTMENTAL REPRESENTATIVE AND LD COUNSEL FOR THE ASSESSEE. WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER O F THE CIT (A). FIRST OF ALL, THERE IS NO DENIAL OF T HE EXISTENCE OF THE ABOVE THREE PARTIES, AS THE ASSESS ING OFFICER CONDUCTED SURVEY AND RECORDED STATEMENTS. THEREFORE, THE PARTIES CANNOT BE CONSIDERED TO BE BOGUS. WITH REFERENCE TO NON-RESPONSE BY THEM, AS RIGHTLY POINTED OUT BY THE CIT (A), THERE COULD BE MANY REASONS FOR NOT RESPONDING. HOWEVER, ASSESSEE, AS NOTED ABOVE, HAS PROVIDED ALL THE VOUCHERS, TRANSPORTATION BILLS, INVOICES ALONG WITH DETAILS OF PAYMENTS MADE BY WAY OF CHEQUES, WHICH ARE NOT DISPUTED. FURTHER, ASSESSEE IS ALSO ABLE T O ESTABLISH THAT THE GOODS RECEIVED WERE IN FACT SOLD AND THE SALES WERE DISTURBED. IN VIEW OF THIS, WE DO NOT SEE ANY REASON DISTURB THE FINDINGS OF THE CIT (A), AS THE REVENUE HAS NOT BEEN ABLE TO ESTABLISH THAT THE SALES ARE INDEED BOGUS AND THOSE PARTIES HAVE GIVEN ACCOMMODATION BILLS IN THE CASE OF THE ASSESSEE. IN THE ABSENCE OF ANY EVIDENCE ON RECORD TO DISTURB THE FINDINGS OF THE CIT (A), WE UPHOLD T HE ORDER OF THE CIT (A) AND DISMISS THE APPEAL OF THE REVENUE. SHRI RAJENDRA KUMAR 5 8. FURTHER, WE HAVE ALREADY EXTRACTED THE CONTENT O F PARA 9 IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEXTILES P LTD (SUPRA), WHEREIN IT WAS HELD THAT TH E STATEMENT OF THIRD PARTY I.E., SHRI RAKESH KUMAR GU PTA, CANNOT BE THE SOLE BASIS FOR MAKING ADDITIONS. FUR THER, WE HAVE ALSO EXAMINED THE PROVISIONS OF SECTION 69 AND FIND THAT THE SAID PROVISIONS CANNOT BE PRESSED INT O SERVICE ONLY WHERE ENTRIES ARE NOT RECORDED IN THE BOOKS OF ACCOUNTS, IF ANY. APPROPRIATE WORDS OF THE SAID PR OVISIONS OF SECTION 69 HAVE ALREADY MENTIONED ABOVE. IT IS ALSO EVIDENT THAT THE CIT (A) HAS RELIED ON THE DECISION OF AHMEDABAD BENCH OF ITAT IN THE CASE OF SUNSTEEL (SUPRA), WHEREIN THE NON-AVAILABILITY OF THE SUPPLI ERS IS THE REASON GIVEN FOR SUSTAINING THE ADDITIONS TO THE EX TENT OF RS. 50,000/- OUT OF RS. 27 LAKHS (ROUNDED OF). WHE REAS IN THE PRESENT CASE SHRI RAKESH KUMAR GUPTA IS VERY MU CH AVAILABLE TO THE REVENUE AUTHORITIES, THEREFORE, TH E SAID DECISION CANNOT HELP THE REVENUE. CONSIDERING THE ABOVE DECISIONS OF THE TRIBUNAL, WHICH ARE DELIVERED BY V ARIOUS BENCHES OF THE ITAT, WE FIND THAT THE REASONS FOR SUSTAINING THE ADDITIONS MADE BY THE AO U/S 69 ARE NOT SUSTAINABLE. FURTHER, TO CLARIFY THE AD-HOC ADDITI ONS CONFIRMED BY THE CIT (A) ARE ALSO NOT SUSTAINABLE S INCE THE AO DID NOT REJECT ANY BOOKS OF ACCOUNT IN THE PRESE NT CASE. AS CLARIFIED EARLIER, THE DECISION IN THIS CASE OF SUNSTEEL (SUPRA) IS DISTINGUISHABLE ON FACTS. THEREFORE, TH E GROUNDS RAISED BY THE ASSESSEE ALSO ALLOWED AND THE REVENUE ARE SHRI RAJENDRA KUMAR 6 DISMISSED FOR BOTH THE ASSESSMENT YEARS 2002-03 AND 2007-08. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE (FOR THE AY 2002-03 AND 2007-08) ARE ALLOWED AND BOTH TH E APPEALS OF THE REVENUE (FOR THE AY 2002-03 AND 2007 -08) ARE DISMISSED. 3.2. DURING THE COURSE OF HEARING BEFORE US IT HAS BEEN ACCEPTED BY BOTH THE PARTIES THAT FACTS ARE IDENTIC AL AND NO DISTINCTION WAS MADE OUT. THUS, RESPECTFULLY FOLLOW ING THE ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE F IND THAT THERE IS NO FORCE IN THE APPEALS FILED BY THE REVEN UE FOR ALL THREE YEARS, AND THEREFORE, SAME ARE DISMISSED. 4. IN THE RESULT, THESE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2015. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER MUMBAI; ' DATED : 18/12/2015 CTX? P.S/. .. #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. $ %& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( $ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -. ' /0 , ) $ /01 , / DR, ITAT, MUMBAI SHRI RAJENDRA KUMAR 7 6. 2 3 / GUARD FILE. / BY ORDER, ( -$ ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI