ITO 27 (1)(4), MUMBAI V. DARSHAK DESIGNER & CONSULTANT, MUMBAI

ITA 4974/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8672 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHUTOSH RAJHANSLD
• Keywords: Bogus purchase
• Section: 143(3); 142(1); 133(6); 143(2); 148

Judgement Text

1 ITA NO.4974/MUM/2018 AY 2009-10 DARSHAK DESIGNER & CONSULTANT - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.4974/MUM/2018 ( / ASSESSMENT YEAR:2009-10 ) INCOME TAX OFFICER - 27(1)(4) TOWER 6, 4 TH FLOOR ROOM NO.409, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI. / VS. DARSHA K DESIGNER & CONSULTANT RAMJI ASHAR BLDG., 515, 5 TH FLOOR M.G. ROAD, GHATKOPAR (E) MUMBAI-400 077. ./ ./PAN/GIR NO. AACFD-7702-Q ( /APPELLANT ) : ( / RESPONDENT ) REVENUE BY : SHRI ASHUTOSH RAJHANS-LD.DR ASSESSEE BY : NONE ' #$ / DATE OF HEARING : 09/09/2019 ' #$ / DATE OF PRONOUNCEMENT : 09/09/2019 / O R D E R PER BENCH: - 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 2009-10 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-24 2 ITA NO.4974/MUM/2018 AY 2009-10 DARSHAK DESIGNER & CONSULTANT MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-24/IT- 520/139/ITO-27(1)(4)/2017-18 DATED 03/05/2018 QUA DELETION OF CERTAIN ADDITIONS ON ACCOUNT OF ALLEGED BOGUS PURCHASES. THE GROUNDS RAISED BY REVENUE READ AS UNDER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.8,79,890/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF BOGUS PURCHASES, WITHOUT APPRECIATING THE FACT T HAT THE ASSESSEE HAD FAILED TO PRODUCE BILLS, VOUCHERS AND OTHER DOCUMENTARY EVIDE NCES IN SUPPORT OF HIS CLAIM AND WITHOUT CONSIDERING THE LATEST APEX COURT DECIS ION IN THE CASE OF N K PROTEIN LTD. WHEREIN IT IS HELD THAT ONCE IT IS PROVED THAT THE PURCHASES ARE BOGUS THEN ADDITION SHOULD BE MADE ON ENTIRE PURCHASES AND NOT ON PROFIT ELEMENT EMBEDDED IN SUCH PURCHASES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ESTIMATING THE PROFIT FROM HAWALA PURCHASES BY DISALLOWING ONL Y RS.1,25,698/- BEING 12.5% OF THE BOGUS PURCHASES AS EVEN THE BASIC ONUS OF PR ODUCING TRANSPORT BILLS, DELIVERY CHALLANS ETC. WERE NOT FULFILLED BY THE AS SESSEE. NONE HAS APPEARED FOR ASSESSEE AND THEREFORE, THE M ATTER IS PROCEEDED WITH EX-PARTE QUA THE ASSESSEE. 2.1 FACTS ON RECORD WOULD REVEAL THAT THE ASSESSEE BEING RESIDENT FIRM STATED TO BE ENGAGED AS WORK CONTRACTOR WAS ASSESSE D FOR IMPUGNED AY U/S. 143(3) R.W.S. 147 ON 19/03/2015 WHEREIN THE IN COME OF THE ASSESSEE WAS DETERMINED AT RS.10.98 LACS AFTER SOLE ADDITION OF ALLEGED BOGUS PURCHASES FOR RS.10.05 LACS AS AGAINST RETURNED INCOME OF RS .9.92 LACS FILED BY THE ASSESSEE ON 02/09/2009 WHICH WAS PROCE SSED U/S.143(1). 2.2 PURSUANT TO RECEIPT OF CERTAIN INFORMATION FROM INVESTIGATION WING / SALES TAX DEPARTMENT, GOVT. OF MAHARASHTRA, IT TRAN SPIRED THAT THE ASSESSEE STOOD BENEFICIARY OF ALLEGED BOGUS PURCHASES TO THE TUNE OF RS.10.05 LACS FROM 5 PARTIES, THE DETAILS OF WHICH HAS ALREADY BE EN EXTRACTED AT PARA-6.1 3 ITA NO.4974/MUM/2018 AY 2009-10 DARSHAK DESIGNER & CONSULTANT OF THE QUANTUM ASSESSMENT ORDER. ACCORDINGLY, AS PE R DUE PROCESS OF LAW, RE-ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST TH E ASSESSEE U/S 147 BY ISSUANCE OF NOTICE U/S 148 ON 31/03/2014. IN RESPON SE, THE ASSESSEE OFFERED ORIGINAL RETURN AS FILED ON 29/09/2009. THE STATUTORY NOTICES U/S 142(1) AND 143(2) WERE ISSUED IN DUE COURSE OF ASSE SSMENT PROCEEDINGS WHEREIN THE ASSESSEE WAS DIRECTED TO SUBSTANTIATE T HE PURCHASE TRANSACTIONS. 2.3 TO CONFIRM THE PURCHASES TRANSACTIONS, NOTICES U/S 133(6) WERE ISSUED TO ALL PARTIES, HOWEVER THE SAME WERE RETURNED BACK UNSERVED BY POSTAL AUTHORITIES WITH THE REMARKS LEFT. THE FIELD INQU IRIES REVEALED DID NOT THROW ANY LIGHT ON THE WHEREABOUTS OF THE SUPPLIERS. THES E FACTS WERE CONFRONTED TO THE ASSESSEE. THE ASSESSEE SUBMITTED THAT THE PU RCHASES WERE GENUINE AND CORRESPONDING SALES WERE MADE AND THE PAYMENT T O SUPPLIERS WERE THROUGH BANKING CHANNELS. HOWEVER, THE ASSESSEE FAI LED TO PRODUCE ANY OF THE SUPPLIERS. RESULTANTLY, LD. AO DISALLOWED THE P URCHASES AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. THE LEARNED FIR ST APPELLATE AUTHORITY, RELYING UPON THE DECISION OF HONBLE GUJARAT HIGH C OURT RENDERED IN CIT V/S SIMIT P. SHETH [356 ITR 451] RESTRICTED THE ADDITION TO 12.5% OF DISPUTED PURCHASES WHICH CAME TO RS.1.25 LACS AND DELETED TH E BALANCE ADDITIONS. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. IT APPEARS THAT THE ASSESSEE IS NOT IN FURTHER APPEAL. WE HAVE HEARD AN D CONSIDERED THE ARGUMENTS RAISED BY LD. DR BEFORE US. 3. WE ARE OF THE CONSIDERED OPINION THERE COULD BE NO SALE WITHOUT ACTUAL PURCHASE OF MATERIAL KEEPING IN VIEW THE ASS ESSEES NATURE OF 4 ITA NO.4974/MUM/2018 AY 2009-10 DARSHAK DESIGNER & CONSULTANT BUSINESS. THE ASSESSEE WAS IN POSSESSION OF PRIMARY PURCHASE DOCUMENTS AND THE PAYMENTS TO SUPPLIERS WERE THROUGH BANKING CHANNELS. THE SALES TURNOVER REFLECTED BY THE ASSESSEE HAS NOT BEEN DIS TURBED / DISPUTED BY LD. AO. HOWEVER, AT THE SAME TIME, NOTICE ISSUED U/S 13 3(6) TO ALL THE ENTITIES REMAINED UNSERVED AND FIELD INQUIRES DID NOT THROW ANY LIGHT ON THE WHEREABOUTS OF THE SUPPLIERS. THE ASSESSEE FAILED T O PRODUCE EVEN A SINGLE PARTY TO CONFIRM THE TRANSACTION AND THE PRIMARY ON US CASTED UPON ASSESSEE, TO SUBSTANTIATE THE PURCHASE TRANSACTIONS , REMAINED UN- DISCHARGED. UNDER SUCH CIRCUMSTANCES, THE ADDITIONS WHICH COULD BE SUSTAINED, WAS TO ACCOUNT FOR PROFIT ELEMENT EMBEDD ED IN THESE PURCHASE TRANSACTIONS TO FACTORIZE FOR PROFIT EARNED BY ASSE SSEE AGAINST POSSIBLE PURCHASE OF MATERIAL IN THE GREY MARKET AND UNDUE B ENEFIT OF VAT AGAINST SUCH BOGUS PURCHASES, WHICH LD. FIRST APPELLATE AUT HORITY HAS RIGHTLY DONE. THEREFORE, CONCURRING WITH THE APPROACH OF LEARNED FIRST APPELLATE AUTHORITY IN RESTRICTING THE ADDITIONS TO 12.5%, WE DISMISS T HE APPEAL. SO FAR AS THE DECISION OF HONBLE GUJARAT HIGH COURT RENDERED IN N.K. INDUSTRIES LTD. VS DCIT [72 TAXMANN.COM 289] IS CONCERNED, WE FIND THAT THE FACTS OF THAT CASE HAS ALREADY BEEN DISTINGUISHED BY HONBLE BOMB AY HIGH COURT IN PR.CIT VS. M/S MOHOMMAD HAJI ADAM & CO. [ITA NO.100 4 & OTHERS OF 2016, DATED 11/02/2019] WHEREIN HONBLE COURT HAS APPROVED THE ESTIMATION, ON SIMILAR FACTUAL MATRIX, BASED ON GRO SS PROFIT RATE. 4. IN RESULT, THE APPEAL STANDS DISMISSED. 5 ITA NO.4974/MUM/2018 AY 2009-10 DARSHAK DESIGNER & CONSULTANT ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH SEPTEMBER, 2019. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 09/09/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. !'#$% , % , / DR, ITAT, MUMBAI 6. #'() / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.