ACIT-22(2), MUMBAI V. MEHTA JAISING BUILDERS, MUMBAI

ITA 5357/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8524 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 17-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIK
• Keywords: Bogus purchase
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI MAHAVIR SINGH , JM & SHRI M.BALAGANESH, AM ITA NO. 5357 /MUM/201 8 ( ASSESSMENT YEAR : 2012 - 13 ) ACIT - 22(2) ROOM NO.315, 3 RD FLOOR PIRAMAL CHAMBERS, LALBAUG, PAREL MUMBAI 400 012 V S. M/S. MEHTA JAISING BUILDERS 398, KIRTI KUNJ, 14 TH ROAD, KHAR (W) MUMBAI 400 052 PAN/GIR NO. AABTM7681C (APPELLANT ) .. (RESPONDENT ) REVENUE BY MS. KAVITA P KAUSHIK ASSESSEE BY NONE DATE OF HEARING 06 / 01 /2020 DATE OF PRONOUNCEMENT 08 / 01 /2020 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 5357/MUM/2018 FOR A.Y. 2012 - 13 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 34, MUMBAI IN APPEAL NO. CIT(A) - 34/ACIT - 22(2)/IT - 32/2015 - 16 DATED 28 /06/2018 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) DATED 20/03/2015 BY THE LD. ASST. COMMISSIONER OF INCOME TAX 22(2), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). 2. THE ONLY ISSUE INVOLVED IN THE REVENUE APPEAL IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED IN RESTRICTING THE DISALLOWANCE @25% ON ACCOUNT ITA NO .5357/MUM/2018 M/S. MEHTA JAISING BUILDERS 2 OF BOGUS PURCHASES AS AGAINST 100% MADE BY THE LD. AO IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. N ONE APPEA RED ON BEHALF OF THE ASSESSEE . WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT ASSESSEE IS A CIVIL CONTRACTOR AND BUILDER AND HAD DERIVED INCOME FROM BUSINESS DURING THE YEAR UNDER CONSIDERATION. WE FIND THAT THE LD. AO OBSERVED THAT ASSESSEE HAD MADE PURCHASES FROM M/S. SUDHA CORPORATION FOR RS.7,71,987/ - WHOSE NAME APPEARED IN THE LIST OF HA W ALA DEALERS IN THE RECORDS OF MAHARASHTRA SALES TAX DEPARTMENT AND BASED ON THAT INFORMATION, THE LD. AO SOUGHT TO TREAT THE ENTIRE PURCHASES MADE FORM SUCH ALLEGED HA W ALA DEALER TO BE BOGUS. ACCORDINGLY, THE LD. AO ADDED THE ENTIRE PURCHASES MADE FROM SUCH PARTY IN THE SUM OF RS.7,71,987/ - AS BOGUS IN THE ASSESSMENT. WE FIND THAT THE LD. CIT(A) HAD CATEGORICALLY OBSE RVED THAT ASSESSEE HAD FILED ONLY CERTAIN DETAILS SUCH AS PURCHASE BILLS, LEDGER ACCOUNT, BANK STATEMENTS ETC, AND NO SPECIFIC DETAILS THAT WERE REQUIRED TO ESTABLISH THE GENUINENESS OF PURCHASES SUCH AS EVIDENCE OF TRANSPORTATION OF GOODS, ENTRY OF GOODS IN THE STOCK REGISTER, ONE TO ONE CONSUMPTION PATTERN OF ALLEGED PURCHASE ITEMS, CONFIRMATION FROM THE PARTIES CONCERNED ETC. WERE FILED. HOWEVER, WE FIND THAT THE LD. CIT(A) HAD ALSO OBSERVED THAT THE CONSTRUCTION ACTIVITY HAD INDEED TAKEN PLACE WHICH GOE S TO PROVE THE FACT OF CONSUMPTION OF RAW MATERIALS WHICH WERE PURCHASED FROM THE ALLEGED HA W ALA DEALER. HENCE, IT COULD BE SAFELY CONCLUDED THAT CONSUMPTION OF RAW MATERIAL HAS NOT BEEN DISPUTED BY THE LD. AO. WE FIND THAT THE LD. CIT(A) HAD RELIED ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAY PROTEINS LTD., VS. CIT REPORTED IN 58 TAXMANN.COM 44 (GUJ HC) WHOSE CASE WAS ALSO THE CASE OF A MANUFACTURER , WHEREIN , DISALLOWANCE OF PURCHASES WAS UPHELD AT 25% OF THE VALUE OF THE ALLEGED PURC HASES FROM BOGUS SUPPLIERS . WE FIND THAT THE LD. CIT(A) HAD PLACED RELIANCE ON THIS JUDGMENT AND REDUCED THE ITA NO .5357/MUM/2018 M/S. MEHTA JAISING BUILDERS 3 DISALLOWANCE OF 25% O N THE VALUE OF PURCHASES. THE LD. DR WAS NOT ABLE TO POINT OUT WHETHER ASSESSEE HAS PREFERRED ANY APPEAL BEFORE THIS TRIBUNAL AGAINS T THE SAID ACTION OF LD. CIT(A). IN THESE CIRCUMSTANCES, WE HAVE NO OTHER OPTION TO CONCLUDE THAT ASSESSEE HAD NOT PREFERRED ANY APPEAL BEFORE THIS TRIBUNAL AGAINST THE ACTION OF THE LD. CIT(A). SINCE THE LD CITA HAD PLACED RELIANCE ON THE DECISION O F HONBLE GUJARAT HIGH COURT TO JUSTIFY HIS ACTION, I N THESE PECULIAR FACTS AND CIRCUMSTANCES, WE DO NOT DEEM IT FIT TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A) AND ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08 / 01 /2020 SD/ - ( MAHAVIR SINGH ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 08 / 01 / 2 020 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//