ITO 32 (3)(3), Mumbai V. SAMEER CONSTRUCTION , Mumbai

ITA 4627/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4462 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Bogus purchase
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI , ! .#$% , ( ! BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER. . 4627 / / 2019 (. .2011-12 ) ITA NO. 4627/MUM/2019 (A.Y.2011-12) THE INCOME TAX OFFICER -32(3)(3) ROOM NO.735, 7 TH FLOOR, KAUTILYA BHAVAN, BKC, BANDRA (E), MUMBAI 400 051 / VS. : / APPELLANT SAMEER CONSTRUCTION, E-1, GORA GANDHI APAT., SV ROAD, OPP. RAILWAY STATION, BORIVALI (WEST), MUMBAI 400 092 PAN: AGGPD6265J : / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI SANJAY J. SETHI / DATE OF HEARING : 14/01/2021 / DATE OF PRONOUNCEMENT : /01/2021 / ORDER PER VIKAS AWASHTY:JM THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-44, MUMBAI ( IN SHORT THE CIT (A)) DATED 26/04/2019 FOR THE ASSESSMENT YEAR 2011-12. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM R ECORDS ARE : THE ASSESSEE/RESPONDENT IS A BUILDER AND DEVELOPER. THE ASSESSEE FILED ITS RETURN OF 2 ITA NO. 4627/MUM/2019 (A.Y.2011-12) INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 09/09/20 11 DECLARING TOTAL INCOME OF RS.20,032/-. DURING THE COURSE OF SCRUTI NY ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD MADE PURCHASES FROM M/S. SHANKESHWAR TRADING CO. FOR RS.22,511/- AND M/S. AJAY STONES FOR RS.1,15,000/-. BOTH THE AFORESAID PARTIES WERE DEC LARED AS BOGUS ENTRY PROVIDERS BY THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA. THE ASSESSEE WAS ASKED TO PROVE GENUINENESS OF PURCHASE S FROM SAID PARTIES. THE ASSESSEE FAILED TO PRODUCE RELEVANT DOCUMENTS VIZ. INWARD REGISTERS, OCTROI RECEIPTS, DELIVERY CHALLANS, TRANSPORT RECEIPTS, ET C. TO PROVE TRAIL OF GOODS. THE ASSESSEE FURTHER FAILED TO FURNISH ANY CONFIRMATION S, FROM THE SAID SUPPLIERS OF THE GOODS TO PROVE GENUINENESS OF THE PARTIES. CON SEQUENTLY, THE ASSESSING OFFICER MADE ADDITION OF THE ENTIRE ALLEGED BOGUS P URCHASES AGGREGATING TO RS.1,37,511/-. AGGRIEVED BY THE ASSESSMENT ORDER DATED 24/03/2014 PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT, THE A SSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER EXAMINING THE FACTS OF THE CASE AND CONSIDERING DECISIONS ON THE ISSUE OF ADDITION ON ACCOUNT OF BO GUS PURCHASES RENDERED BY HONBLE HIGH COURTS AND VARIOUS BENCHES OF THE T RIBUNAL, RESTRICTED THE ADDITION TO 12.5% OF SUCH BOGUS PURCHASES. AGAINST THE FINDINGS OF CIT(A) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. SHRI SANJAY J. SETHI, REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE ASSESSMENT ORDER AND PRAYED FOR REVERSING THE FINDING OF CIT(A). THE LD.DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSES SEE FAILED TO PROVE GENUINENESS OF PURCHASES AND THE SUPPLIERS OF GOODS . EVEN NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT TO THE SUPPLIERS WE RE RETURNED BACK UNSERVED. THE LD.DEPARTMENTAL REPRESENTATIVE PLACED RELIANCE ON THE DECISION OF HON'BLE 3 ITA NO. 4627/MUM/2019 (A.Y.2011-12) SUPREME COURT IN THE CASE OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF N.K. PROTEINS VS. DCIT IN SLP NO.(C) 769 OF 2017 DECIDED ON 16/01/2017. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY LD.DEPARTM ENTAL REPRESENTATIVE AND HAVE EXAMINED THE ORDERS OF AUTH ORITIES BELOW. UNDISPUTEDLY, THE ASSESSEE HAS FAILED TO PROVE GE NUINENESS OF THE PURCHASES MADE FROM M/S.SHANKESHWAR TRADING CO. AND M/S. AJA Y STONES. THE ASSESSING OFFICER MADE ADDITION OF THE ENTIRE ALLEGED BOGUS P URCHASES MADE FROM THE AFORESAID SUPPLIERS. THE ASSESSING OFFICER NEITHER REJECTED THE BOOKS NOR HAS RAISED ANY DOUBT ON THE CONSTRUCTION ACTIVITIES CA RRIED OUT BY THE ASSESSEE. WITHOUT PURCHASES OF MATERIAL THE ASSESSEE COULD NO T HAVE CARRIED OUT CONSTRUCTION BUSINESS. HENCE, ENTIRE BOGUS PURCHAS ES CANNOT BE ADDED. THE CIT(A) HAS RESTRICTED THE ADDITION TO 12.5% OF SUCH BOGUS PURCHASES. WE FIND THAT THE ORDER OF CIT(A) IS IN LINE WITH THE JUDGM ENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF PCIT VS. PARAMSHAKHTI DISTRIBU TORS PVT. LTD. IN INCOME TAX APPEAL NO.413 OF 2017 DECIDED ON 15/07/2019. WE CO NCUR WITH THE FINDING OF CIT(A) AND DISMISS THE APPEAL OF REVENUE BEING D EVOID OF ANY MERIT. 5. IN THE RESULT, APPEAL BY THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON WEDNESDAY, THE 20 TH DAY OF JANUARY, 2021. SD/- SD/- (S.RIFAUR RAHMAN) (VIKAS AWASTHY) ( / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, -'/ DATED: 20/01/2021 VM , SR. PS(O/S) 4 ITA NO. 4627/MUM/2019 (A.Y.2011-12) COPY OF THE ORDER FORWARDED TO : 1. . / THE APPELLANT , 2. /0 / THE RESPONDENT. 3. 10 ( )/ THE CIT(A)- 4. 10 CIT 5. 23/0' , . . . , / DR, ITAT, MUMBAI 6. 345$6 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI