INCOME TAX OFFICER-19(1)(3), MUMBAI V. GANPAT METAL INDUSTRIES, MUMBAI

ITA 5125/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5003 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Accommodation entries; Set aside
• Section: 143(1); 274; 143(2); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO . 5125 /M UM /201 9 ( / ASSESSMENT YEAR : 2009 - 10 ) ITO - 19(1)(3) ROOM NO.220, 2 ND FLOOR, MATRU MANDIR BUILDING, TARDEO ROAD, MUMBAI - 400007 . / VS. GANPAT METAL INDUSTRIES SHOP NO.1 NARAYAN NIWAS, 2 ND KHETWADI LANE NEAR ALANKAR CINEMA, MUMBAI - 400004. ./ ./ PAN/GIR NO. : AAGFG1194B ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 25 / 02 / 20 2 1 /DATE OF PRONOUNCEMENT: 08 / 04 / 2021 / O R D E R PER AMARJIT SINGH, JM: THE REVENUE HAS FILED THE PRESENT A PPEAL AGAINST THE ORDER DATED 03 . 05 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 07 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 09 - 1 0 . 2 . THE REVENUE HAS RAISED THE FOLLOWING G ROUNDS: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN RESTRICTING THE ADDITION @ 12.5% AS AGAINST @ 19.5% MADE BY THE AO ON BOGUS PURCHASES DESPITE THE FACT THAT THE ADDITION WAS MADE ON BASI S OF CREDIBLE INFORMATION RECEIVED FROM DGIT(INV.) BASED ON INFORMATION SUPPLIED FROM SALES TAX AUTHORITIES. REVENUE BY: MS. SMITA VERMA (SR. A R) ASSESSEE BY : NONE ITA. NO. 5125 / M UM /201 9 A.Y . 2009 - 10 2 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. THE APPELLANT CRAVE S LEAVE TO AMEND OR ALTER OR ADD A NEW GROUND WHICH MAY BE NECESSARY . 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS R ETURN OF INCOME ON 28 . 09 .20 0 9 DECLARING TOTAL INCOME TO TH E TUNE OF RS. NIL. THE RETURN WAS PROCESSED U/S 143(1) OF T HE I. T. ACT, 1961 ACCEPTING THE RETURNED INCOME . THEREAFTER, THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE ACT I. T. ACT, 1961 AND ACCORDINGLY, NOTICE U/S 148 OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE ON 19.02.2014. NOTICES U/S 143(2) & 14 2(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. AN INFORMATION WAS RECEIVED FROM THE DGIT(INV.) WING, MUMBAI , IN WHICH IT WAS CONVEYED THAT THE ASSESSEE HAS TAKEN THE BOGUS PURCHASE S ACCOMMODATION ENTRIES FROM THE FOLLOWING SIX PARTIES IN SUM OF RS.4,505,620/ - . NAME OF THE PARTY FY AMOUNT TOTAL ROMEX METAL & TUBES PVT. LTD. 2008 - 09 31,755 SIDDHIVINAYAK STEEL 2008 - 09 886,934 CHANCHAL TUBE CORPORATION 2008 - 09 613,819 ASIAN STEEL 2008 - 09 1,223,591 SURAT TUBE CORPORATION 2008 - 09 1,544,520 MONTEX METAL & STEEL PVT. LTD. 2008 - 09 205,001 4,505,620 NOTICE ISSUED AND AFTER THE REPLY OF THE ASSESSEE, THE AO RAISED THE ADDITION TO THE EXTENT OF 19 . 50 % OF THE BOGUS PURCHASE OF RS.4,505,620/ - . THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE T UNE OF RS.8,78,590 / - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO RESTRICTED THE ADDITION TO THE EXTENT OF 12.5% OF THE BOGUS PURCHASE BUT THE REVENUE WAS NOT SATISFIED, THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE U S. ITA. NO. 5125 / M UM /201 9 A.Y . 2009 - 10 3 5 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE REVENUE AND HAS GONE THROUGH THE CASE CAREFULLY . THE LD. REPRESENTATIVE OF THE REVENUE HAS ARGUED THAT THE CIT(A) HAS WRONGLY REDUCED THE ADDITION TO THE EXTENT OF 12.5% OF THE ALLE GED BOGUS PURCHASE , THEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE. BEFORE GOING FURTHER, WE DEEM IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD: - 5.3 HAVING CONSIDERED THE ASSESSMENT ORDER OF THE AO AND THE SUBMISSIONS OF THE ASSESSEE, IT IS SEEN THAT THE MAIN PLANK OF ASSESSEES ARGUMENTS REGARDING THE GENUINENESS OF THE PURCHASES WAS THAT THE PAYMENT HAS BEEN MADE BY CHEQUE/BANKING CHANNELS AND WHICH HAS NOT FOUND FAVOUR WITH COURTS TRIBUNAL S PR ONOUNCEMENTS LIKE IN THE CASE OF M/S. KANCHWALA GEMS VS. JCIT [ITA NO. '134/JP/2002 DATED 10.12.2003 BY THE HONBLE ITAT, JAIPUR WHEREIN IT IS HELD THAT PAYMENT BY ACCOUNT PAYEE CHEQUE {IS NOT SUFFICIENT TO ESTABLISH THE GENUINENESS OF PURCHASES. THE SAID DECISION OF THE ITAT, JAIPUR HAS BEEN AFFIRMED BY THE HONBLE SUPREME COURT IN THE CASE OF M/S KACHWALA GEMS VS. JCIT (2006) 206 CTR (SC) 585: 288 ITR 10 (SC). THUS, THE MAIN CONTENTION OF THE APPELLANT DOES NOT HOLD MUCH WATER. THE AO HAS FORMED HIS VIEWS ABOUT THE BOGUS NATURE OF THE PURCHASES MADE BY THE APPELLANT FROM THE ABOVE PARTIES ON THE BASIS OF STATEMENTS RECORDED BY THE SALES TAX AUTHORITIES AS WELL AS FURTHER INQUIRIES CARRIED OUT BY HIM INDEPENDENTLY. THE INFORMATION RECEIVED FROM THE SALES T AX AUTHORITIES WAS ONLY A PIECE OF EVIDENCE TO INITIATE IN - DEPTH INDEPENDENT INVESTIGATION ON THE ISSUE. IT IS NOT THE CASE OF THE APPELLANT THAT HE HAS MAINTAINED A PROPER STOCK REGISTER. THE APPELLANT HAS NOT BEEN ABLE TO. ESTABLISH. ONE TO ONE RELATION SHIP/NEXUS BETWEEN THE PURCHASES AND SALES. THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE THE PARTIES FROM WHOM PURCHASES HAVE BEEN ALLEGED TO HAVE BEEN MADE. THE APPELLANT HAS ALSO FAILED TO PRODUCE CORROBORATIVE EVIDENCE IN THE FORM OF TRANSPORTATION BILLS E TC. TO ESTABLISH THAT THE ALLEGED PURCHASES WERE ACTUALLY TRANSPORTED TO ITS PREMISES AND ENTERED IN THE STOCK REGISTER. IT IS ALSO A FACT THAT THE AO HAS NOT CONFRONTED THE ASSESSEE WITH ALL THE INFORMATION IN HIS POSSESSION LIKE STATEMENTS OF THE ALLEGE D HAWALA OPERATORS. HE DID NOT GO AHEAD WITH MONEY TRAIL OF CHEQUES DEBITED IN THE APPELLANT S BANK ACCOUNT TOWARDS THE ALLEGED PURCHASES THOUGH SUCH INVESTIGATION DO NOT LEAD TO CONCRETE RESULTS IN THE CASE OF HAWALA DEALERS AND INVESTIGATORS ITA. NO. 5125 / M UM /201 9 A.Y . 2009 - 10 4 OF THE DEAD END IN SUCH CASES. IT IS NOT THE CASE OF THE AO THAT. THE IMPUGNED PURCHASES HAVE CONCLUSIVELY BEEN ESTABLISHED AS NOT HAVING BEEN EFFECTED AT ALL. THE AO HAS ONLY FOUND THE IMPUGNED SUPPLIER AS BOGUS PARTIES AND HE HAS NOT DISPUTED THE CORRESPONDING SALES . THE AO HAS ONLY ESTIMATED THE PROFIT ELEMENT EMBEDDED IN THE IMPUGNED PURCHASES. 5.3.1 IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE TOTAL PURCHASES SHOWN TO BE MADE FROM THE AFORESAID PARTIES COULD NOT BE HELD TO BE ENTIRELY BOGUS. IT NEEDS TO BE APPRECIATED THAT IN ORDER TO ACHIEVE THE REPORTED SALES/TURNOVER, THERE MUST BE SOME CORRESPONDING PURCHASES, WHETHER EFFECTED FROM THE ALLEGED ENTRY PROVIDERS OR FROM THE GREY MARKET WITHOUT BILLS. THUS, THERE OUGHT TO. BE SOME PURCHASE. TIRE AO HAS NOT DISPUTED CORRESPONDING SALES. IN THIS REGARD, THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. NIKUNJ EXIMP ENTERPRISES (P.) LTD., IS QUITE RELEVANT WHEREIN HONBLE HIGH COURT HAS HELD THAT: - WHEN THE ASSESSEE HAVE FILED LETTER OF CONFIRMATIONS OF THE SUPPLIERS, BANK STATEMENTS HIGHLIGHTING THE PAYMENT ENTRIES THROUGH ACCOUNT PAYEE CHEQUE, COPIES OF INVOICES, STOCK RECONCILIATION STATEMENTS BEFORE THE AO AND MERELY BECAUSE THE SUPPLIERS DID NOT APPEAR BEFORE THE AO, ONE CANNOT CO NCLUDE THAT THE PURCHASES WERE NOT MADE BY THE ASSESSEE. THE AO CANNOT DISALLOW THE PURCHASES ON THE BASIS OF SUSPICION BECAUSE THE SUPPLIERS WERE NOT PRODUCED BEFORE THEM. 5.3.2 IN VIEW OF THE DISCUSSION AS ABOVE, IT IS CLEAR THAT MATERIALS PURCHASED AN D SOLD BY THE APPELLANT CANNOT BE DOUBTED THOUGH IT IS NOT POSSIBLE FOR THE ASSESSEE TO ESTABLISH ONE TO ONE NEXUS/LINK BETWEEN PURCHASES AND SALES. HOWEVER, THE FACT OF THE MATTER REMAINS THAT THESE TRANSACTIONS ARE NOT VERIFIABLE FROM THE PARTIES IN QUE STION AS IT COULD NOT BE ESTABLISHED THAT PURCHASES HAD BEEN EFFECTED FROM THE PARTIES IN QUESTION. THUS THE PURCHASE PRICES SHOWN ON THE INVOICES PRODUCED COULD NOT BE SUBJECTED TO VERIFICATION AND AS SUCH IT WAS DIFFICULT TO ESTABLISH THE CORRECTNESS OF THE PURCHASE PRICES PAID FOR THE MATERIALS PURCHASED. IN THE ABSENCE OF ANY SUCH VERIFICATION AS TO THE CORRECTNESS OF THE PRICE PAID FOR THE MATERIALS PURCHASED BY THE APPELLANT, THE PURCHASE PRICE PAID AS MENTIONED ON THE INVOICES/BILLS CANNOT BE ACCEPTE D AS THE CORRECT PRICE PAID FOR THE GOODS PURCHASED FROM SUCH PARTIES. IN VIEW OF THE SAME, THE POSSIBILITY OF OVER - INVOICING OF THE MATERIALS PURCHASED TO REDUCE THE PROFIT CANNOT BE RULED OUT. THEREFORE, THE GROSS PROFIT RATE SHOWN BY THE APPELLANT FOR T HE YEAR UNDER ITA. NO. 5125 / M UM /201 9 A.Y . 2009 - 10 5 CONSIDERATION CANNOT BE RELIED UPON. IN THE CIRCUMSTANCES, THE CORRECT APPROACH IN SUCH TRANSACTIONS WOULD BE TO ESTIMATE THE ADDITIONAL BENEFIT OR PROFIT EARNED ON THESE PURCHASES AND NOT TO DISALLOW THE ENTIRE PURCHASES FROM THE AFORESAID PARTIES. IN MY VIEW EITHER THE PURCHASES FROM SUCH PARTIES IS OVER INVOICED OR THE PURCHASES WERE ACTUALLY MADE BUT NOT FROM THE PARTIES FROM WHICH IT WAS CLAIMED TO HAVE BEEN MADE AND INSTEAD MAY HAVE BEEN PURCHASED FROM: GREY MARKET WITHOUT PROPER BILL ING OR DOCUMENTATION. 5.3.3 IN MANY JUDICIAL PRONOUNCEMENTS ON THE ISSUE, THE COURTS HAVE TAKEN A CONSISTENT VIEW THAT IN CASE OF NON - EXISTENT PARTIES FROM WHICH THE PURCHASES ARE SHOWN TO HAVE BEEN MADE, ONLY A PART OF SUCH PURCHASES CAN BE DISALLOWED, PARTICULARLY IN SUCH CASES WHERE THE CORRESPONDING SALES ARE NOT DOUBTED. ALTERNATIVELY, THE PROFIT EMBEDDED IN SUCH SALES AGAINST THE ALLEGED BOGUS PURCHASES SHOULD BE BROUGHT TO TAX. 5.3.3.1 IN THE CASE OF CIT - 1 VS SIMIT P. SHETH, ITA NO. 553 OF 2012, O RDER DATED 15/01/2013, WHILE DECIDING A SIMILAR ISSUE, THE HON'BLE HIGH. COURT OF GUJARAT BAS HELD THAT: 'WE ARE BROADLY IN AGREEMENT WITH THE REASONING ADOPTED BY THE COMMISSIONER (APPEALS) WITH RESPECT TO THE NATURE OF DISPUTED PURCHASES OF STEEL. IT MA Y BE THAT THE THREE SUPPLIERS, FROM WHOM THE ASSESSEE CLAIMED TO HAVE PURCHASED THE STEEL DID NOT OWN UP TO SUCH SALES. HOWEVER, VITAL QUESTION WHILE CONSIDERING WHETHER THE ENTIRE AMOUNT OF PURCHASES SHOULD BE ADDED BACK TO THE INCOME OF THE ASSESSEE OR ONLY THE PROFIT ELEMENT EMBEDDED THEREIN WAS TO ASCERTAIN WHETHER THE PURCHASES THEMSELVES WERE COMPLETELY BOGUS AND NON - EXISTENT OR THAT THE PURCHASES WERE ACTUALLY MADE BUT NOT FROM THE PARTIES FROM WHOM IT WAS CLAIMED TO HAVE BEEN MADE AND INSTEAD MAY HAVE BEEN PURCHASED FROM GREY MARKET WITHOUT PROPER BILLING OR DOCUMENTATION. IN THE PRESENT CASE, CIT BELIEVED THAT WHEN AS A TRADER IN STEEL THE ASSESSEE SOLD CERTAIN QUANTITY OF STEEL, HE WOULD HAVE PURCHASED THE SAME QUANTITY FROM SOME SOURCE. WHEN THE TOTAL SALE IS ACCEPTED BY THE ASSESSING OFFICER, HE COULD NOT HAVE QUESTIONED THE VERY BASIS OF THE PURCHASES. IN ESSENCE THEREFORE, THE COMMISSIONER (APPEALS) BELIEVED ASSESSEES THEORY THAT THE PURCHASES WERE NOT BOGUS BUT WERE MADE FROM THE PARTIES OTHE R THAN THOSE MENTIONED IN THE BOOKS OF ACCOUNTS. THAT BE IN THE POSITION NOT ENTIRE PURCHASE PRICE BUT ON IT ELEMENT EMBEDDED IN SUCH PURCHASES CAN BE ADDED TO THE INCOME OF THE ASSESSEE. SO MUCH IS CLEAR BY DECISION OF THIS COURT. IN PARTICULAR, COURT HAS ALSO TAKEN A SIMILAR VIEW IN CASE OF ITA. NO. 5125 / M UM /201 9 A.Y . 2009 - 10 6 COMMISSIONER OF INCOME TAX - IV VS. VIJAY M MISTRY: CONSTRUCTION LTD. VIDE ORDER DATED 10.01.2011 PASSED IN TAX APPEAL NO. 1090 OF 2009 AND IN CASE OF COMMISSIONER OF INCOME TAX - I VS. BHOLANATH POLY FAB PVT. LTD. VIDE OR DER DATED 23.10.2012 PASSED IN TAX APPEAL NO. 63 OF 2012. THE VIEW TAKEN BY THE TRIBUNAL IN CASE OF VIJAY PROTEINS PVT. LTD. VS. CIT REPORTED IN 58 ITD 428 CAME TO BE APPROVED. 5.3.4 SIMILARLY, WHILE DEALING WITH AN IDENTICAL ISSUE, IN THE CASE OF CIT, V S. BHOLANATH POLY. FAB (P) LTD., LT.A. NO. 63 OF 2012, IN THE ORDER DATED 23/10/2012, THE HON'BLE HIGH COURT OF GUJARAT HAS HELD AS UNDER: WE ARE OF THE OPINION THAT THE TRIBUNAL - COMMITTED NO ERROR. WHETHER THE PURCHASES THEMSELVES WERE BOGUS OR WHETHER T HE PARTIES FROM WHOM SUCH PURCHASES WERE ALLEGEDLY MADE WERE BOGUS IS ESSENTIALLY A QUESTION OR FACT. THE TRIBUNAL HAVING EXAMINED THE EVIDENCE ON RECORD THE FINISHED GO ON THAT THE ASSESSEE DID PURCHASE THE CLOTH AND SELL. IN THE ENTIRE COVERED UNDER SUCH PURCHASE, BUT THE PROFIT ELEMENT EMBEDDED THEREIN WOULD BE SUBJECT TO TAX, THIS WAS THE VIEW OF THIS COURT IN THE CASE OF SANJAY OILCAKE INDUSTRIES V. CIT [2009] 316 ITR 274 (GUJ). SUCH DECISION IS ALSO FOLLOWED BY THIS COURT IN A JUDGMENT DATED AUGUST 16 , 2011, IN TAX APPEAL NO. 679 OF 2010 - IN THE CASE OF CIT V. KISHORAMRUTLAL PATEL. IN THE RESULT, TAX APPEAL IS DISMISSED. (EMPHASIS SUPPLIED) 5.3.5 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE JUDICIAL PRONOUNCEMENTS CITED ABOVE, WHAT CAN B E DISALLOWED OR TAXED IN THE INSTANT CASE, IS THE EXCESS PROFIT ELEMENT EMBEDDED IN. SUCH PURCHASES SHOWN TO HAVE BEEN MADE FROM AFORESAID PARTIES. AS NARRATED EARLIER, THE AO IN THIS CASE HAS HELD THAT VARIOUS PARTIES FROM WHOM THE PURCHASES WERE MADE BY THE APPELLANT WERE FOUND TO BE BOGUS, ESTIMATIONS RANGING FROM 12.5% TO 25% HAVE BEEN UPHELD BY THE HON'BLE GUJARAT HIGH COURT, DEPENDING UPON THE NATURE OF THE BUSINESS. 5.3.5.1 IN A NUMBER/SERIES OF RECENT CASES INVOLVING THE SCAM UNEARTHED BY THE SALES TAX DEPT OF MAHARASHTRA WHEREBY THE HAWALA DEALERS WERE FOUND TO BE ISSUING BOGUS PURCHASE BILLS WITHOUT DELIVERY OF GOODS, THE. HON'BLE MUMBAI TRIBUNAL HAS ESTIMATED THE G.P ADDITION ON ACCOUNT OF SUCH BOGUS PURCHASES AS 12.5%, SOME OF WHICH ARE LISTED B ELOW: SMT. KIRANNAVINDOSHI IN ITA NO. 2601/MUM/2016 DATED 18.01.2017. II) ASHWIN PURSHOTAM BAJAJ @ & ANR. VS ITO & ANR, IN ITA NO.4736/MUM/2014, 5207/MUM/2014, DATED:14 - 12 - 2016. ITA. NO. 5125 / M UM /201 9 A.Y . 2009 - 10 7 III) ITO & ANR. VS. MANISH KANJI PATEL & ANR, IN ITA NO. 7299/MUM/2014, 715 4/MUM/2012, & 7300/MUM/2014, 7627/MUM/2014, DATED: 18 - 05 - 2017. IV METROPOLITAN EXIMCHEM LTD., ITA NO. 2935/MUM/2015, DATED:29 - 03 - 2017 V. RONAK METAL INDUSTRIES VS. IT 0, ITA NO. 722/MUM.2017 DATED. 04.09.2017; VI. ITO VS. JUGRAJ R. JAIN, ITA NO. 2571/M UM/2016 & 2572/M/2016 DATD. 02.08.2017; VII) B. J. EXPORTS VS. ASSTT. COMMISSIONER OF INCOME TAX, ITA NO. 5442, 5444/MUM/2016 DATED 13.09.2017; BATLIBOI ENVIRONMENTAL ENGINEERING LTD. VS. DEPUTY COMMISSIONER OF INCOME - TAX, ITA NO. 2840 & 3482/M/2015 DATED 15.03.2017; IX) DEPUTY COMMISSIONER OF INCOME - TAX & ANR. VS. REMI PROCESS PLANT & MACHINERY LTD. & ANR, ITA NO. 1723/M/2015, 1817/M/2015 DATED 21.03.2017.' X) SMT. USHA B. AGARWAL VS. ITO, ITA NO. 7034/MUM/2016, DATED 01.09.2017. IN VIEW OF THE ABOVE DI SCUSSED FACTUAL MATRIC AND PRECEDENTS, I AM OF THE VIEW THAT ESTIMATION OF 12. 5 % OF PROFIT EMBEDDED IN IMPUGNED PURCHASES SHOWN FROM THE ALLEGED HAWALA PARTY AND ADDING THE SAME TO THE TOTAL INCOME RETURNED, WOULD MEET THE END OF JUSTICE. THEREFORE, I DIRECT THE AO TO ESTIMATE PROFIT @ 12.5% OF THE ALLEGED BOGUS PURCHASES, WHICH WORKS OUT TO RS. 5,63,203/(12.5% OF RS. 45,05 620/) AND RESTRICT THE ADDITION TO RS. 5 63 203/. THE APPELLANT GETS A RELIEF FOR THE BALANCE AMOUNT OF RS. 3,15,387/ - . HENCE, THE GROUNDS NO. 1 TO 5 OF APPEAL ARE PARTLY ALLOWED. ' 6 . ON APPRAISAL OF THE ABOVE MENTIONED FINDING, WE NOTICE D THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY ON THE BASIS OF THE DECISION OF THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF CIT VS. BH OLANATH POLY FAB PVT. LTD. ITA. NO.63 OF 2012, IN THE ORDER DATED 23.10.2012 & CIT VS. SIMIT P. SHETH, ITA. NO.553 OF 2012, ORDER DATED 16.01.2013 ITA. NO. 5125 / M UM /201 9 A.Y . 2009 - 10 8 AND THE OTHER JUDGMENTS WHICH HAVE BEEN REPRODUCED IN THE ORDER. IN THE INSTANT CASE, SALE IS NOT DOUBTED, TH EREFORE, THE CIT(A) HAS RESTRICTED THE ADDITION TO THE EXTENT OF 12.5% OF THE BOGUS PURCHASE WHICH WORKS OUT TO THE TUNE OF RS.5,63,203/ - (12.5% OF RS.45,05,620/ - ) . THE FACTS ARE NOT DISTINGUISHABLE AT THIS STAGE. TAKING INTO ACCOUNT, ALL THE FACTS AND CIR CUMSTANCES, WE ARE OF THE VIEW THAT CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. ACCORDINGLY, WE UPHELD THE FINDING OF THE CIT(A) ON TH IS ISSUE AND DECIDE THIS ISSU E IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 8 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED . ORDER PRONOUNCE D IN THE OPEN COURT ON 08 / 0 4 / 20 2 1 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBA I DATED : 08 /04 /20 21 VIJAY PAL SINGH ( SR. PS ) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE CO PY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI