ITO 20(3)(3), MUMBAI V. M/S SHARADBHAI J. SHAH, MUMBAI

ITA 5162/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8900 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Onus to prove

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI , ! ,'# '$ BEFORE VIKAS AWASTHY, JUDICIAL MEMBER & SHRI N.K.PRADHAN, ACCOUNTANT MEMBER . 5162/ / 2019 (. . 2009-10 ) ITA NO.5162/MUM/2019(A.Y.2009-10) ITO -20(3)(3), 6 TH FLOOR, ROOM NO.614, PIRAMAL CHAMBERS, MUMBAI 400 012 ...... ) / APPELLANT VS. M/S. SHARADBHAI J. SHAH, 149, MAULANA AZAD ROAD, DUNCAN ROAD, MUMBAI 400 012 PAN:AABFS3031N ..... !*/ RESPONDENT ASSESSEE BY : SHRI SHYAM SABOO REVENUE BY : SHRI SANJAY J. SETHI +* / DATE OF HEARING : 04/03/2021 ,-. +* / DATE OF PRONOUNCEMENT : 08/03/2021 '/ ORDER PER VIKAS AWASTHY, J.M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-32, MUMBAI ( IN SHORT THE CIT (A)) DATED 27/05/2019 FOR THE ASSESSMENT YEAR 2009-10. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM THE RECORDS ARE: THE ASSESSEE IS A WHOLESALE TRADER OF TIN PLATES AND BLACK PLATE. THE ASSESSMENT IN THE CASE OF ASSESSEE FOR ASSESSMENT YEAR 2009-10 WAS REOPENED O N THE BASIS OF INFORMATION 2 . 5162/ / 2019 (. . 2009-10 ) ITA NO.5162/MUM/2019(A.Y.2009-10) RECEIVED BY THE DGIT (INV), MUMBAI FROM THE SALE T AX DEPARTMENT, GOVERNMENT OF MAHARASHTRA THAT THE ASSESSEE HAS OBTAINED BOGUS PU RCHASE BILLS AGGREGATING TO RS.12,91,013/- FROM TWO HAWALA OPERATORS NAMELY: (I) M/S. MAIRU ENTERPRISES RS. 3,06,639/- (II) M/S. RAHUL TRADERS RS. 9,84,374/- SINCE, THE ASSESSEE FAILED TO SUBSTANTIATE GENUIN ENESS OF THE PURCHASES AND THE SUPPLIERS, THE ASSESSING OFFICER MADE ADDITION OF THE ENTIRE BOGUS PURCHASES. AGGRIEVED BY THE ASSESSMENT ORDER DATED 28/03/2014, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER CONSIDERING TH E SUBMISSIONS OF THE ASSESSEE AND DOCUMENTS ON RECORD DELETED THE ENTIRE ADDITION QU A PURCHASES FROM M/S. MAIRU ENGTERPRISES AND RESTRICTED THE ADDITION TO 14% ON PURCHASES FROM M/S. RAHUL TRADERS. AGAINST THE FINDINGS OF CIT(A) THE REVEN UE IS IN APPEAL BEFORE THE TRIBUNAL. 3. SHRI SANJAY J. SETHI, REPRESENTING THE DEPART MENT VEHEMENTLY SUPPORTING THE ASSESSMENT ORDER SUBMITTED THAT ASSESSING OFFICER H AD MADE ADDITION OF THE ENTIRE BOGUS PURCHASES AS THE ASSESSEE FAILED TO DISCHARGE HIS ONUS IN PROVING GENUINENESS OF THE PURCHASES FROM DECLARED HAWALA OPERATORS. T HE CIT(A) HAS ERRED IN DELETING ENTIRE ADDITION IN RESPECT OF BOGUS PURCHASES FROM M/S. MAIRU ENTERPRISES AND RESTRICTING ADDITION @ 14% FROM M/S. RAHUL TRADERS. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY LD. DEPAR TMENTAL REPRESENTATIVE AND HAVE EXAMINED THE ORDERS OF AUTHORITIES BELOW. TH E ASSESSEE FURNISHED NEW ADDRESS OF ONE OF THE SUSPICIOUS DEALER I.E. M/S. MAIRU ENTERPRISES AND ALSO FURNISHED DOCUMENTS TO SUBSTANTIATE TRAIL OF GOODS. HOWEVER , THE ASSESSING OFFICER FAILED TO ISSUE NOTICE TO THE SAID SUPPLIER UNDER SECTION 133 (6) OF THE ACT. AS REGARDS THE OTHER SUPPLIER, THE ASSESSEE FAIRLY ADMITTED THAT NO DO CUMENT CAN BE FURNISHED TO DISCHARGE ONUS TO PROVE GENUINENESS. SINCE, THE A SSESSING OFFICER HAD ACCEPTED THE TURNOVER DECLARED BY THE ASSESSEE, THE THE CIT(A) ESTIMATED THE PROFIT ELEMENT EMBEDDED IN BOGUS PURCHASE TRANSACTIONS BY ESTIMATI NG PROFIT @ 14% ON BOGUS 3 . 5162/ / 2019 (. . 2009-10 ) ITA NO.5162/MUM/2019(A.Y.2009-10) PURCHASES FROM M/S.RAHUL TRADERS. WE FIND THAT TH E ORDER OF CIT(A) IS WELL REASONED AND FAIR. WE CONCUR WITH THE SAME. THE AP PEAL OF THE REVENUE IS WITHOUT ANY MERIT. HENCE, THE SAME IS DISMISSED AND THE IM PUGNED ORDER IS UPHELD. 5. IN THE RESULT, APPEAL BY THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY, T HE 8 TH DAY OF MARCH, 2021. SD/- SD/- (N.K.PRADHAN) (VIKAS AWAST HY) '# / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, 0/ DATED 08/03/2021 VM , SR. PS (O/S) !*12'.* COPY OF THE ORDER FORWARDED TO : 1. ) / THE APPELLANT , 2. !* / THE RESPONDENT. 3. 3* ( ) / THE CIT(A)- 4. 3* CIT 5. 45!* , . . . , / DR, ITAT, MUMBAI 6. 56789 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI