PBA INFRASTRUCTURE LTD., MUMBAI V. ACIT CENT CIR. 36, MUMBAI

ITA 5320/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8123 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 29-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: Y P TRIVEDI
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) I.T.A. NO. 5320 /MUM/20 16 (ASSESSMENT YEAR 20 06 - 07 ) PBA INFRASTRUCTURE LIMITED 611/3, PRAKASH BUILDING V.N. PURAV MARG CHEMBUR, MUMBAI - 400 071. PA N : AAACP7564K VS. ASSISTANT CIT CENTRAL CIRCLE - 36 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI Y.P. TRIVEDI DEPARTMENT BY S HRI RAJESH KUMAR YADAV DATE OF HEARING 1 4. 1 2 . 201 7 DATE OF PRONOUNCEMENT 14 . 12 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 22.01.2016 PASSED BY LD CIT(A) - 53, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2006 - 07. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE DISALLOWANCE OF RS.15.52 LAKHS RELATING TO BOGUS PURCHASES. 2. THE APPEAL IS BARRED BY LIMITATION BY 120 DAYS. THE ASSESSEE HAS MOVED A PETITION REQUESTING THE BENCH TO CONDONE THE DELAY. THE LD D.R OBJECTED TO THE PLEA OF THE ASSESSEE AND IN THIS REGARD, HE TOOK SUPPORT OF THE DECISION RENDERED BY CO - ORDINATE BENCH IN THE CASE OF SHRI KUNAL SURANA (ITA NO.3297/MUM/2012 DATED 19.04.2013). ON THE CONTRARY, THE LD A.R SUBMITTED THAT THE DELAY HAS OCCURRED FOR THE REASONS B EYOND THE CONTROL OF THE ASSESSEE AS MENTIONED IN THE PETITION AND ACCORDINGLY PRAYED THAT THE DELAY MAY KINDLY BE CONDONED. PBA INFRASTRUCTURE LIMITED 2 3. WE HEARD THE PARTIES ON THIS PRELIMINARY ISSUE. THE CAUSE OF DELAY IS ESSENTIALLY A QUESTION OF FACT AND HENCE THE REASONS GIVEN IN EACH CASE HAVE TO BE ANALYSED INDEPENDENTLY. IN THE INSTANT CASE, HAVING REGARD TO THE SUBMISSIONS MADE IN THE PETITION, WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN PRESENTING THE APPEAL WITHIN THE PRESCRIBED TIME LIM IT. ACCORDINGLY WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4. THE ASSESSEE IS AN INFRASTRUCTURE DEVELOPER. CONSEQUENT TO THE INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT THAT CERTAIN DEALERS ARE INDULGING IN PROVIDING ONLY ACCOMMO DATION BILLS WITHOUT ACTUALLY SUPPLYING MATERIALS AND UPON NOTICING THAT THE ASSESSEE HAS PURCHASED GOODS TO THE TUNE OF RS.15.52 LAKHS FROM ONE OF SUCH DEALERS, THE AO REOPENED THE ASSESSMENT OF THE YEAR UNDER CONSIDERATION. THE AO COMPLETED THE ASSESSME NT BY DISALLOWING THE ABOVE SAID PURCHASES AND THE LD CIT(A) ALSO CONFIRMED THE SAME. AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL. 5. THE LD A.R SUBMITTED THAT IDENTICAL ADDITIONS WERE MADE IN THE ASSESSEES OWN CASE IN AY 2007 - 08 TO 2011 - 12 AND TH E TRIBUNAL, VIDE ITS ORDER DATED 08 - 08 - 2017 PASSED IN ITA NOS.2121 TO 2125 HAS RESTRICTED THE ADDITION TO 12.50% OF THE VALUE OF BOGUS PURCHASES. ACCORDINGLY THE LD A.R PRAYED THAT THE ORDER PASSED IN THE EARLIER YEARS MAY KINDLY BE FOLLOWED. 6. ON THE CONTRARY, THE LD D.R THAT THE HONBLE SUPREME COURT HAS CONFIRMED THE ADDITION OF 100% OF BOGUS PURCHASES IN THE CASE OF NK PROTEINS LTD (2917 - TIOL - 23 - SC - IT) AND ACCORDINGLY SUBMITTED THAT THE LD CIT(A) WAS JUSTIFIED IN CONFIRMING ADDITION OF 100% OF THE VALUE OF BOGUS PURCHASES. PBA INFRASTRUCTURE LIMITED 3 7. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT THE FACTS PREVAILING IN THE CASE OF NK PROTEINS LTD (SUPRA) ARE TOTALLY DIFFERENT AND HENCE WE ARE OF THE VIEW THAT THE REVENUE CANNOT TAKE SUPPORT OF THE SAME. IN ANY CASE, THE DECISION RENDERED IN EACH CASE WOULD DEPEND UPON THE FACTS PREVAILING IN EACH CASE. WE NOTICE THAT THE REVENUE HAS FAILED TO SHOW THE PARITY OF FACTS BETWEEN THE INSTANT CASE AND IN THE CASE OF NK PROTEINS LTD (SUPRA). 8. WE FURTHER NO TICE THAT THE CO - ORDINATE BENCH HAS ALREADY TAKEN A VIEW ON IDENTICAL ADDITIONS MADE IN THE ASSESSEES OWN CASE IN THE OTHER YEARS, WHEREIN THE ADDITION WAS CONFIRMED TO THE EXTENT OF 12.50% OF THE VALUE OF PURCHASES. SINCE THERE IS NO CHANGE IN FACTS, WE ARE INCLINED TO FOLLOW THE SAME. ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY LD CIT(A) AND DIRECT THE AO TO RESTRICT THE ADDITION TO 12.50% OF THE VALUE OF BOGUS PURCHASES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 14 . 1 2 .201 7. SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 14 / 1 2 / 20 1 7 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// ( ASSTT. REGISTRAR /SENIOR PS ) PS ITAT, MUMBAI