INCOME TAX OFFICER 15(1)(2), MUMBAI V. M/S FAMOUS FASHION PVT LTD. ( EARLIEAR KNOW AS M/S KAMAT PRINTERS PVT LTD), MUMBAI

ITA 5254/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9509 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 09-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANOOP
• Keywords: Bogus purchase
• Section: 143(3); 48; 147

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 5254/MUM/2019 (ASSESSMENT YEAR 2011-12) ITO-15(1)(2) ROOM NO. 15B GROUND FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. VS. M/S. FAMOUS FASHION PVT. LTD. (EARLIER KNOWN AS M/S. KAMAT PRINTERS PVT.LTD.) UNIT NO. 359, A TO Z INDUSTRIAL ESTATE GANPATRAO KADAM MARG LOWER PAREL MUMBAI - 400 013. (APPELLANT) (RESPONDENT) C.O. NO. 14/MUM/2021 (ASSESSMENT YEAR 2011-12) M/S. FAMOUS FASHION PVT. LTD. (EARLIER KNOWN AS M/S. KAMAT PRINTERS PVT. LTD.) UNIT NO. 359, A TO Z INDUSTRIAL ESTATE GANPATRAO KADAM MARG LOWER PAREL MUMBAI - 400 013. VS. ITO-15(1)(2) ROOM NO. 15B GROUND FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. (APPELLANT) (RESPONDENT) PAN : AAACK1570A ASSESSEE BY NONE DEPARTMENT BY SHRI ANOOP DATE OF HEARING 17 .0 5 .2021 DATE OF PRONOUNCEMENT 01 .0 7 .2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARISE OUT OF THE ORDER OF LEARNED CIT(A) DATED 22.5.2019 PERT AINS TO A.Y. 2011-12. REVENUES APPEAL : M/S. FAMOUS FASHION PVT. LTD. 2 2. THE ISSUE RAISED IS THAT LEARNED CIT(A) ERRED IN RESTRICTING THE DISALLOWANCE TO 12.5%. 3. BRIEF FACTS ARE THAT THE ASSESSING OFFICER DISAL LOWED 100% OF PURCHASES BASED UPON INFORMATION RECEIVED FROM SALES TAX DEPA RTMENT THAT ASSESSEE HAS INDULGED IN HAWALA PURCHASE. THE ASSESSEE PROVIDED THE DOCUMENTARY EVIDENCE BUT ASSESSING OFFICER TOOK ADVERSE INFEREN CE ON ASSESSEES INABILITY TO PRODUCE THE SUPPLIER. 4. UPON ASSESSEES APPEAL LEARNED CIT(A) RESTRICTED THE DISALLOWANCE TO 12.5% BASED UPON HON'BLE GUJARAT HIGH COURT DECISIO N IN SIMIT P. SETH [356 ITR 451]. 5. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSED THE RECORDS. WE FIND THAT 100% ADDITION HAS BEEN MADE B Y THE ASSESSING OFFICER IN THE PREMISE THAT THE SUPPLIER HAS NOT BEEN PRODUCED BY THE ASSESSEE. NO DEFECT IN THE VOUCHER OR BOOKS HAS BEEN NOTED NOR A NY DOUBT HAS BEEN EXPRESSED ON SALE. IN THESE CIRCUMSTANCES IN OUR CO NSIDERED OPINION THE DISALLOWANCE SUSTAINED BY LEARNED CIT(A) SERVES THE INTEREST OF JUSTICE. ACCORDINGLY, WE UPHOLD THE SAME. THE CASE LAW REFER RED BY THE REVENUE IN GROUNDS HAS BEEN DULY EXPLAINED AND DISTINGUISHED B Y HON'BLE BOMBAY HIGH COURT IN MOHD. HAZI ADAM & CO. (ITA NO. 1004 OF 200 6 DATED 11.2.2019). ASSESSEES CROSS OBJECTION :- 7. GROUNDS OF APPEAL READ AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND I N LAW, THE PROCEEDINGS INITIATED U/S 147 OF THE ACT IS INVALID AND BAD IN LA W AND THE CIT(A) ERRED IN NOT DEALING WITH THIS GROUND OF APPEAL. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE ASSESSMENT ORDER PASSED US 143(3) R.W.S. 147 OF THE ACT IS INVAL ID AND BAD IN LAW AND THE CIT(A) ERRED IN NOT DEALING WITH THIS GROUND OF APPEA L M/S. FAMOUS FASHION PVT. LTD. 3 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE AND IN LA W, THE LEARNED CIT(A) ERRED IN SUSTAINING ADDITION TO EXTENT OF 12.5% OF THE SO CALLED BOGUS PURCHASE ADDITION OF RS.6,18,750/- 8. AT THE OUTSET IT IS NOTED THAT THERE IS A DELAY OF 48 DAYS IN FILING THE CROSS OBJECTION. THE ASSESSEE HAS NOT FILED ANY CONDONATI ON REQUEST. HENCE, THIS CROSS OBJECTION IS NOT MAINTAINABLE. HENCE, THE SAM E IS DISMISSED IN LIMINE. 9. IN THE RESULT, THE REVENUES APPEAL AND ASSESSEE CROSS OBJECTION BOTH ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 1.7.2021. SD/- SD/- (AMARJIT SINGH) (SHAMIM Y AHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 01/07/2021 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 COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI