M/S HEMDEV REALITY PVT LTD., Mumbai V. ACIT WARD 12 (2)(2), Mumbai

ITA 4654/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3677 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 09-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: GURBINDER SINGH LD
• Assessee Lawyers: HARI RAHEJALD ARS
• Keywords: Bogus purchase
• Section: 133(6); 147; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO. 4654/MUM/2019 ( / ASSESSMENT YEAR : 2008-09) M/S. HEMDEV REALITY PRIVATE LTD 205, QUEEN PLACE WATER FIELD ROAD, BANDRA (W) MUMBAI-400 050. / VS. A CIT - WARD - 1 2(2)2 AAYKAR BHAVAN MUMBAI-400 020 *+ ./ ./PAN/GIR NO. AABCH-1615-A ( +- /APPELLANT ) : ( ./+- / RESPONDENT ) ASSESSEE BY : SHRI HARI RAHEJA-LD.ARS REVENUE BY : SHRI GURBINDER SINGH-LD.SR. DR / DATE OF HEARING : 04/03/2021 / DATE OF PRONOUNCEMENT : 04/03/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEA R [AY] 2008-09 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-20, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO.CIT(A)-20/IT- 10328/2016-17 DATED 14/05/2019 QUA CONFIRMATION OF CERTAIN ADDITIONS OF RS.33.31 LACS ON ACCOUNT OF ALLEGED BOGUS PURCHASES. 2. THE LD. AR, DRAWING ATTENTION TO PAPER BOOK, SUB MITTED THAT LD. AO MADE IMPUGNED ADDITION WITHOUT ANY BASIS. THE PURCH ASES WERE BACKED 2 BY PURCHASE INVOICES AND THE PAYMENTS WERE THROUGH BANKING CHANNELS. THE SUPPORTING DOCUMENTS IN THE SHAPE OF PURCHASE I NVOICES, PURCHASE REGISTER, LEDGER EXTRACTS, SALES REGISTER, BANK STA TEMENT ETC. HAS BEEN PLACED BEFORE US. IN THE ALTERNATIVE, LD. AR PLEADE D TO RESTRICT THE ADDITIONS TO SOME REASONABLE EXTENT AS DONE IN NUME ROUS ORDERS OF VARIOUS BENCHES OF THE TRIBUNAL UNDER SIMILAR CIRCU MSTANCES. THE LD. DR, ON THE OTHER HAND, DREW ATTENTION TO THE FACT T HAT THESE DOCUMENTS WERE NOT PLACED BEFORE LOWER AUTHORITIES AND THE IM PUGNED ORDER IS AN EX-PARTE ORDER. 3. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D GONE THROUGH THE DOCUMENTS PLACED BEFORE US. OUR ADJUDICATION TO THE SUBJECT MATTER OF APPEAL WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPH S. 4. THE MATERIAL FACTS ARE THAT THE ASSESSEE BEING R ESIDENT CORPORATE ASSESSEE STATED TO BE ENGAGED IN CONSTRUCTION AND T RADING OF DIAMONDS WAS ASSESSED FOR THE YEAR UNDER CONSIDERATION ON BEST-JUDGMENT BASIS U/S 144 R.W.S. 147 OF THE ACT. THE ORIGINAL ASSESSM ENT WAS FRAMED U/S 143(3). HOWEVER, THE CASE WAS REOPENED PURSUANT TO RECEIPT OF CERTAIN INFORMATION FROM DG (INVESTIGATION) THAT THE ASSESS EE PROCURED BOGUS PURCHASE BILLS AGGREGATING TO RS.33.31 LACS FROM TW O TAINTED PARTIES BELONGING TO SHRI RAJENDRA JAIN GROUP AS DETAILED I N THE ASSESSMENT ORDER. NOTICES ISSUED U/S 133(6) TO CONFIRM THE TRA NSACTIONS DID NOT ELICIT ANY SATISFACTORY RESPONSE. IN THE ABSENCE OF ANY SA TISFACTORY RESPONSE FORTHCOMING FROM ASSESSEE TO ESTABLISH THE GENUINEN ESS OF THE PURCHASES, THESE WERE ADDED BACK TO ASSESSEES INCO ME. 5. THOUGH THE ASSESSEE PREFERRED FURTHER APPEAL BEF ORE LD. CIT(A), HOWEVER, IT FAILED TO DEFEND THE PURCHASES SO MADE WHICH RESULTED INTO 3 CONFIRMATION OF ACTION OF LD. AO. AGGRIEVED, THE AS SESSEE IS IN FURTHER APPEAL BEFORE US. 6. UPON DUE CONSIDERATION, WE FIND THAT THERE COULD BE NO SALE WITHOUT ACTUAL PURCHASE OF MATERIAL. THE GOODS PROCURED BY THE ASSESSEE FROM THESE TWO DEALERS HAS SUBSEQUENTLY BEEN EXPORTED AS COULD BE BORNE OUT OF THE DOCUMENTS PLACED BEFORE US. THE ASSESSEE WAS IN POSSESSION OF PURCHASE INVOICES AND THE PAYMENTS TO SUPPLIERS WERE THROUGH BANKING CHANNELS. AT THE SAME TIME, THE ASSESSEE FA ILED TO DISCHARGE THE PRIMARY ONUS OF PROVING THE GENUINENESS OF THE PURCHASES. THEREFORE, IT IS A FIT CASE TO ESTIMATE THE ADDITIO NS ON SUCH PURCHASES. TO PUT AN END TO LITIGATION, WE ESTIMATE THE ADDITIONS AGAINST TAINTED PURCHASES @10%. ACCORDINGLY, THE IMPUGNED ADDITIONS STANDS RESTRICTED TO RS.3,33,195/- WHEREAS THE BALANCE ADDITION STAND DELETED. NO OTHER EFFECTIVE POINTS HAVE BEEN URGED BEFORE US. 7. THE APPEAL STAND PARTLY ALLOWED TO THE EXTENT IN DICATED IN THE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH MARCH, 2021. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 04/03/2021 SR.PS, JAISY VARGHESE !'#' / COPY OF THE ORDER FORWARDED TO : 1. +- / THE APPELLANT 2. ./+- / THE RESPONDENT 3. 6 ( ) / THE CIT(A) 4. 6 / CIT CONCERNED 5. 78.19 , 9 , / DR, ITAT, MUMBAI 6. 8:;< / GUARD FILE 4 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.