ITO-17(1)(5), MUMBAI V. M/s. Himanshu Traders, , MUMBAI

ITA 5084/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0177 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Section: 143(1); 201; 13

Judgement Text

1 I.T.A. NO.5084 & 5085/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHA N (ACCOUNTANT MEMBER) I.T.A. NO. 5084 /MUM/201 9 - A SSESSMENT Y EAR 2009 - 10 I.T.A. NO.5085/MUM/2019 - A SSESSMENT Y EAR 2012 - 13 INCOME - TAX OFFICER - 17(1)(5), MUMBAI VS M/S HIMANSHU TRADERS OFFICE NO.17, 2 ND FLOOR,NAGDEVI CHAMBERS, NAGDEVI STREET, MUMBAI 400 053 PAN : AAAFH0793F APPELLANT RESPONDENT APPELLANT BY SHRI SANJAY J SETHI, DR RESPONDENT BY SHRI RAJESH SHAH, AR DATE OF HEARING 24 - 02 - 2021 DATE OF PRONOUNCEMENT 1 1 - 0 3 - 2021 O R D E R PER SAKTIJIT DEY (JM) THESE ARE APPEALS BY THE REVENUE AGAINST TWO SEPARATE ORDER S , BOTH DATED 1 4 - 0 5 - 201 9 , OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 56 , MUMBAI FOR THE ASSESSMENT YEAR S2009 - 10 AND 20 1 2 - 1 3 . 2. THE ONLY COMMON DISPUTE IN BOTH THESE APPEALS RELATE TO PART DELETION OF ADDITION S MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NON GENUINE PURCHASES 2 I.T.A. NO.5084 & 5085/MUM/2019 3. BRIEFLY THE FACTS ARE, THE ASSESSEE FIRM IS A TRADER IN IRON AND STEEL HARDWARE . FOR BOTH THE ASSESSMENT YEARS UNDER DISPUTE, THE ASSESSEE HAD FILED ITS RETURN S OF INCOME IN REGULAR COURSE AND THEY WERE PROCESSED U NDER SECTION 143(1) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE S ALES - TAX DEPARTMENT TH ROUGH THE INVESTIGATION WING THAT PURCHASES WORTH RS.5,96,896/ - IN ASSESSMENT YEAR 2009 - 10 AND RS.1,59,592/ - IN ASSESSMENT YEAR 2012 - 13 ARE NON GENUINE AS THE CONCERNED SELLING DEALER S W ERE IDENTIFIED AS HAWALA OPERATORS PROVIDING ACCOMMODATION BILLS. ON T HE BASIS OF SUCH INFORMATION, ASSESSING OFFICER REOPENED THE ASSESSMENT S FOR BOTH THE ASSESSMENT YEARS UNDER DISPUTE. IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO FURNISH EVIDENCE TO PROVE THE GENUINENESS OF PURCHA SES. THOUGH , THE ASSESSEE FURNISHED SOME EVIDENCES, HOWEVER, THEY WERE NOT TO THE SATISFACTION OF THE ASSESSING OFFICER. THEREFORE, ULTIMATELY, THE ASSESSING OFFICER DISALLOWED THE ENTIRE PURCHASES ALLEGED TO BE BOGUS IN BOTH THE ASSESSMENT YEARS AND ADDED BACK TO THE INCOME OF THE ASSESSEE. ASSESSEE CONTESTED THE AFORESAID ADDITION S BEFORE LEARNED COMMISSIONER (APPEALS). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIALS ON RECORD, LEARNED COMMISSIONER OF (APPEALS) REST RICTED THE DISALLOWANCE/ADDITION TO 5% OF THE ALLEGED NON GENUINE PURCHASES IN BOTH THE YEARS . 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. THE LEARNED D EPARTMENTAL R EPRESENTATIVE SUBMITTED, THE ASSESSEE HA VING FAILED TO PROVE THE GENUINENESS OF PURCHASES , THE ADDITION MADE BY THE ASSESSING OFFICER SHOULD BE RESTORED . WHEREAS , THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED, IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2010 - 11 AND 2011 - 12, THE FIRST 3 I.T.A. NO.5084 & 5085/MUM/2019 APPELLATE AUTHORITY HAS RESTRIC TED SIMILAR DISALLOWANCE TO 5% AND DEPARTMENT HAS ACCEPTED IT. THEREFORE, THERE IS NO NEED TO INTERFERE WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS). 5. HAVING CONSIDERED THE SUBMISSIONS OF THE PARTIES, WE FIND FROM THE IMPUGNED ORDER OF LEARNED COM MISSIONER (APPEALS) THAT SIMILAR DISALLOWANCE IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2010 - 11 & 2011 - 12 WAS MADE BY THE ASSESSING OFFICER. HOWEVER, LEARNED COMMISSIONER (APPEALS) RESTRICTED THE DISALLOWANCE TO 5%. NOTHING HAS BEEN BROUGHT BEFORE US BY THE REVENUE TO DEMONSTRATE THAT THERE IS ANY DIFFERENCE IN FACTUAL POSITION IN THE IMPUGNED ASSESSMENT YEARS COMPARED TO ASSESSMENT YEARS 2010 - 11 & 2011 - 12. SINCE , LEARNED COMMISSIONER (APPEALS) HAS FOLLOWED HIS EARLIER DECISION IN RESTRICTING THE DISALLOW ANCE TO 5% , WHICH IS STATED TO HAVE BEEN ACCEPTED BY THE REVENUE IN EARLIER YEARS, WE DO NOT FIND ANY VALID REASON TO INTERFERE WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS). GROUNDS ARE DISMISSED. 6. IN THE RESULT, APPEALS ARE DISMISSED. ORDER PRONOUNCED ON 1 1 /0 3 /2021. S D / - S D / - (N.K. PRADHAN) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 1 1 /0 3 /2021 PAVANAN 4 I.T.A. NO.5084 & 5085/MUM/2019 COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI