DCIT CC 3(4) EN RG 3, MUMBAI V. STARTECK INFRAPROJECT P.LTD, MUMBAI

ITA 5030/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9884 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 12-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESHWAR YADAV LD DR
• Assessee Lawyers: RAKESH JOSHI LD
• Keywords: Bogus purchase; Accommodation entries
• Section: 143(3); 133(6)

Judgement Text

ITA NO.5029 & 5030/M/2015 STARTECK INFRAPROJECT PRIVATE LIMITED ASSESSMENT YEARS- 2011-12 & 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 5029 & 5030/MUM/2015 ( / ASSESSMENT YEARS: 2011-12 & 2012-13) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 3(4) ROOM NO.401 4 TH FLOOR AAYKAR BHAVAN MUMBAI 400 0 20 / VS. STARTECK INFRAPROJECT PVT.LTD 5 TH FLOOR, SUNTECK CENTRE 37, SUBASH ROAD VILE PARLE(E) MUMBAI-400 057 ./ ./PAN/GIR NO. AAMCS-6543-B ( /APPELLANT ) : ( !' / RESPONDENT ) A SSESSEE BY : RAKESH JOSHI, LD. AR RE VENUE BY : RAJESHWAR YADAV, LD. DR (CIT) / DATE OF HEARING : 28/08/2017 / DATE OF PRONOUNCEMENT : 06/09/2017 ITA NO.5029 & 5030/M/2015 STARTECK INFRAPROJECT PRIVATE LIMITED ASSESSMENT YEARS- 2011-12 & 2012-13 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THESE ARE TWO APPEALS BY REVENUE FOR ASSESSMENT YEARS [AY] 2011-12 & 2012-13 WHICH ASSAILS SEPARATE ORDER OF F IRST APPELLATE AUTHORITY BOTH DATED 28/07/2015. SINCE, BOTH THE AP PEALS INVOLVE SOLITARY ISSUE OF BOGUS PURCHASES, WE DISPOSE-OFF THE SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BREVITY. FIRST WE TAKE UP ITA NO. 5029/MUM/2015 FOR AY 2011-12 WHICH CONTEST RELIEF PROVIDED TO ASSESSEE BY LD. COMMISSIONER OF INCOME-TAX (APPEALS )- 51 [CIT(A)], MUMBAI VIDE ORDER DATED 28/07/2015 TO THE EXTENT OF RS.2,48,64,409/- ON ACCOUNT OF CERTAIN BOGUS PURCHASES. 2.1 FACTS LEADING TO THE DISPUTE ARE THAT THE ASSES SEE BEING RESIDENT CORPORATE ASSESSEE ENGAGED AS BUILDERS & DEVELOPERS WAS SUBJECTED TO AN ASSESSMENT U/S 143(3) READ WITH SECTION 153C FOR THE IMPUGNED AY ON 28/03/2014 AT RS.3,78,67,360/- AFTER ADDITION ON OF BOGUS PURCHASES FOR RS.2,48,64,409/-. THE ORIGINAL RETURN WAS FILED AT RS.1,30,02,948/- ON 29/09/2011 AND THE SAME INCOME WAS OFFERED PURSUANT TO NOTICE U/S 153C. 2.2 DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THA T THE ASSESSEE MADE PURCHASES OF RS.2,48,64,409/- FROM NINE PARTIE S OUT OF WHICH THREE PARTIES WERE LISTED AS BOGUS PARTIES ENGAGED IN PROVIDING ACCOMMODATION ENTRIES AS PER THE WEBSITE INFORMATION OF SALES TAX DEPARTMENT, MAHARASHTRA . NOTICES SENT U/S 133(6) TO CONFIRM THE PURCHASE TRANSACTIONS REMAINED UN-SERVED AND THE INSPECTORS REPORT ITA NO.5029 & 5030/M/2015 STARTECK INFRAPROJECT PRIVATE LIMITED ASSESSMENT YEARS- 2011-12 & 2012-13 3 DATED 13/03/2014 REVEALED THAT NO SUCH CONCERN EXIS TED AT THE GIVEN ADDRESSEES. THE ASSESSEE, WHILE CONTESTING THE SAME , SUBMITTED LEDGER EXTRACTS, PURCHASE INVOICES TO SUBSTANTIATE THE PURCHASES BUT COULD NOT PRODUCE ANY PARTY FOR CONFIRMATION OF TRANSACTIONS. FINALLY LD. AO, NOT SATISFIED WITH ASSESSEES EXPLANATIONS / SUBMISSION S, TREATED THE SAME AS NON-GENUINE PURCHASES AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME SUCCE SSFULLY BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 28/07/2015 WHE RE THE ASSESSEE REITERATED ITS STAND THAT THE PURCHASES WERE GENUIN E AND DREW ATTENTION TO THE FACT THAT ONLY THREE PARTIES WERE LISTED AS SUSPICIOUS DEALERS AND THEREFORE, WHOLE ADDITION WAS UNJUSTIFIED. THE LD. CIT(A) AFTER CONSIDERING THE ASSESSEES SUBMISSIONS NOTED THAT T HE ASSESSEE PRODUCED QUANTITATIVE DETAILS, DELIVERY CHALLANS, B ANK STATEMENTS, LEDGER EXTRACTS, CONFIRMATION FROM THE RESPECTIVE PARTIES AND THEREFORE, THE ADDITIONS WERE NOT JUSTIFIED. AGGRIEVED, THE REVENU E IS IN FURTHER APPEAL BEFORE US. 4. THE LD. DEPARTMENTAL REPRESENTATIVE [DR] DREW OU R ATTENTION TO THE FACT THAT THE ASSESSEE COULD NOT PRODUCE ANY OF THE PARTY FOR CONFIRMATION OF TRANSACTION AND NOTICES SENT U/S 13 3(6) REMAINED UN- SERVED AND INSPECTORS REPORT CLEARLY REVEALED THAT NONE OF THE PARTIES EXISTED AT THE GIVEN ADDRESS. IT WAS FURTHER CONTEN DED THAT THE ASSESSEE COULD NOT ESTABLISH ACTUAL DELIVERY OF MATERIAL BEF ORE LOWER AUTHORITIES AND NO QUANTITATIVE DETAILS FOR CONSUMPTION OF MATE RIAL WERE FILED BY THE ASSESSEE AND LD. CIT(A), ON WRONG ASSUMPTION OF FAC TS, DELETED THE IMPUGNED ADDITIONS. THE LD. DR POINTED OUT THAT THE ONUS TO ITA NO.5029 & 5030/M/2015 STARTECK INFRAPROJECT PRIVATE LIMITED ASSESSMENT YEARS- 2011-12 & 2012-13 4 SUBSTANTIATE THE PURCHASES SQUARELY LIED ON THE ASS ESSEE WHICH HE FAILED TO DISCHARGE AND MERE PAYMENT THROUGH BANKIN G CHANNELS WAS NOT SUFFICIENT TO PROVE THE SAME AND THEREFORE, LD. CIT (A) ERRED IN GRANTING RELIEF TO THE ASSESSEE. 5. PER CONTRA, LD. COUNSEL FOR ASSESSEE [AR] WHILE SUPPORTING THE STAND OF LD. CIT(A), CONTENDED THAT THE ASSESSEE WA S IN POSSESSION OF SUFFICIENT DOCUMENTARY EVIDENCES TO SUBSTANTIATE TH E PURCHASES AND THEREFORE, NO ADDITION WAS WARRANTED UNDER THE CIRC UMSTANCES. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. WE FIND DISCREPANCIES IN THE FINDINGS OF LD. AO AND FIRST APPELLATE AUTHORITY SINCE LD. CIT(A), CONTRARY TO FINDINGS OF LD. AO , NOTED THAT THE ASSESSEE PRODUCED DELIVERY CHALLANS, QUANTITATIVE DETAILS, CONSUMPTION OF MATERIAL, CONFIRMATIONS ETC. THE LD. CIT(A) FURTHER NOTED THAT REPLIES / CONFIRMATIONS WERE RECEIVED FROM RES PECTIVE PARTIES AGAINST NOTICES SENT U/S 133(6) WHEREAS AS PER LD. AO, NO C ONFIRMATIONS ETC. WERE RECEIVED FROM THE RESPECTIVE PARTIES. THEREFOR E, WITHOUT DELVING MUCH DEEPER INTO THE ISSUE ON MERITS, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF L D. AO FOR RE- APPRECIATION OF THE FACTUAL MATRIX WITH A DIRECTION TO ASSESSEE TO PROVE THE PURCHASES TRANSACTIONS CONCLUSIVELY BY PLACING COGENT MATERIAL ON RECORD FAILING WHICH LD. AO SHALL BE AT LIBERTY TO DECIDE THE SAME AS PER LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. R ESULTANTLY, THE REVENUES APPEAL STANDS ALLOWED FOR STATISTICAL PUR POSES. 7. NOW WE TAKE UP ITA NO.5030/MUM/2015 FOR AY 2012- 13 WHERE THE ASSESSEE, IN SIMILAR CIRCUMSTANCES, SUFFERED ADDITI ON OF RS.2,12,42,238/- VIDE QUANTUM ASSESSMENT ORDER U/S 143(3) DATED 28/0 3/2014. THE ITA NO.5029 & 5030/M/2015 STARTECK INFRAPROJECT PRIVATE LIMITED ASSESSMENT YEARS- 2011-12 & 2012-13 5 ADDITION, UPON APPEAL, HAS BEEN DELETED BY LD. CIT( A), AGAINST WHICH THE REVENUE IS IN FURTHER APPEAL BEFORE US. THERE B EING NO CHANGE IN FACTS OR CIRCUMSTANCES EXCEPT FOR MINOR VARIATIONS / CHANGE IN FIGURES ETC. , TAKING THE SAME STAND, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF LD. AO WITH SIMIL AR DIRECTIONS. RESULTANTLY, THE REVENUES APPEAL STANDS ALLOWED FO R STATISTICAL PURPOSES. 8. IN NUTSHELL, BOTH THE APPEALS FILED BY THE REVEN UE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH SEPTEMBER, 2017. SD/- SD/- (MAHAVIR SINGH) (M ANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06. 09.2017 SR.PS:- THIRUMALESH / 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