M/S AMAN MARKETING SERVICES PVT LTD., Mumbai V. ITO CIRCLE-3(1)(1), Mumbai

ITA 5544/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4500 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Gift; Corroborative evidences
• Section: 201; 139(1); 43; 147; 2

Judgement Text

1 I T A S 5 544 TO 5546 /MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) I.T.A. NO S . 5 544 TO 5546 /MUM/2019 (ASSESSMENT YEAR S 2009 - 10, 201 0 - 1 1 & 2011 - 12 ) AMAN MARKETING SERVICES PVT LTD 115,SEALORD A. CUFFE PARADE MUMBAI - 400 005 PAN : AACFG0200A VS ITO,CIRCLE - 3(1)(1), MUMBAI APPELLANT RESPONDENT APPELLANT BY NONE RESPONDENT BY SMT. SMITA VERMA (DR) DATE OF HEARING 23 - 03 - 2021 DATE OF PRONOUNCEMENT 1 5 - 04 - 2021 O R D E R PER SAKTIJIT DEY (JM): CAPTIONED APPEALS BY THE SAME ASSESSEE ARISE OUT OF THREE SEPARATE ORDER S OF L EARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 3 , MUMBAI FOR THE ASSESSMENT YEAR S 2009 - 10, 2010 - 11 & 2011 - 12 . 2. THE ONLY DISPUTE IN ALL THESE APPEALS RELATE S TO DISALLOWANCE MADE ON ACCOUNT OF ALLEGED NON GENUINE PURCHASES. 3. BRIEFLY, THE FACTS COMMON IN ALL THESE APPEALS ARE, THE ASSESSEE IS A RESIDENT COMPANY. AS STATED BY THE ASSESSING OFFICER, ASSESSEE IS ENGAGED IN THE BUSINESS 2 I T A S 5 544 TO 5546 /MUM/2019 OF RETAIL TRADING OF VARIOUS GIFT ITEMS. FOR THE ASSESSMENT YEARS UNDER DISPUTE, ASSESSEE HA D FILED ITS RETURN OF INCOMER UNDER SECTION 139(1) OF THE INCOME TAX ACT , 1961 . THE RETURNS OF INCOME SO FILED WERE PROCESSED U NDER SECTION 1 43 (1) OF THE ACT. SUBSEQUENTLY, THE ASSESSIN G OFFICER RECEIVED INFORMATION FROM THE S ALES - TAX DEPARTMENT THROUGH THE DIRECTOR GENERAL OF I NCOME - TAX (INVESTIGATION), MUMB AI [(DGIT(INV)] THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODATION BILLS PROVIDED BY HAWALA OPERATORS BY WAY OF NON GENUINE PURCHA SES . ON THE BASIS OF SUCH INFORMATION, THE ASSESSING OFFICER REOPENED THE ASSESSMENT S U NDER SECTION 147 OF THE ACT. IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER , ON THE BASIS OF INFORMATION RECEIVED, FOUND THE FOLLOWING PURCHASES IN DIFFERENT ASSESSMENT YEARS AS NON GENUINE: - A.Y. 2009 - 10 RS. 54,20,454/ - A.Y. 2010 - 11 RS. 35,04,220/ - A.Y. 2011 - 12 RS. 7,56,352/ - 4. THEREFORE, HE CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF SUCH PURCHASES WITH SUPPORTING EVIDENCES. THOUGH , THE ASSESSEE SUBMITTED SOME DOCUMENTARY EVIDENCE TO PROVE THE PURCHASES; HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED. ULTIMATELY, THE ASSESSING OFFICER CONCLUDED THAT THE PURCHASES MADE BY THE ASSESSEE ARE NOT GENUINE. HAVING HELD SO, HE DISALLOWED A N AMOUNT OF RS.14,76,021/ - IN ASSESSMENT YEAR 2009 - 10 WHICH INCLUDED DISALLOWANCE OF AN AMOUNT OF RS.11,.54,999/ - ON PEAK BASIS. INSOFAR AS ASSESSMENT YEARS 2010 - 11 AND 2011 - 12 ARE CONCERNED, THE ASSESSING OFFICER MADE ADDITION BY ESTIMATING THE GROSS PRO FIT MARGIN ON THE ALLEGED NON GENUINE PURCHASES AT 4% AND ALSO ON ACCOUNT OF COMMISSION PAID FOR ARRANGING NON GENUINE PURCHASES. ASSESSEE CONTESTED THE AFORESAID DISALLOWANCES / ADDITIONS BEFORE L EARNED COMMISSIONER 3 I T A S 5 544 TO 5546 /MUM/2019 OF INCOME - TAX (APPEALS). AFTER CONSIDER ING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIALS ON RECORD, L EARNED COMMISSIONER OF INCOME - TAX (APPEALS) RESTRICTED THE DISALLOWANCE TO 12.5% OF ALLEGED NON GENUINE PURCHASES IN ASSESSMENT YEAR 2009 - 10 . W HEREAS , IN ASSESSMENT YEARS 2010 - 11 AND 2011 - 12, SINCE THE DISALLOWANCE MADE BY THE ASSESSING OFFICER WAS LESS THAN THE PROFIT ELEMENT ESTIMATED AT 12.5%, HE CONFIRMED THE ADDITION S MADE BY THE ASSESSING OFFICER. 5 . WHEN THE APPEALS WERE CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. CONSIDERING THE NATURE OF DISPUTE, WE PROCEED TO DISPOSE OF THE APPEALS EX PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIALS ON RECORD AND AFTER HEARING THE LEARNED D EPARTMENTAL R EPRESENTATIVE. 6 . WE HAVE CONSIDERED THE SUBMISSIONS O F THE LEARNED D EPARTMENTAL R EPRESENTATIVE AND PERUSED THE MATERIALS ON RECORD. ON A READING OF THE IMPUGNED ASSESSMENT ORDERS, IT IS VERY MUCH CLEAR THAT THE ASSESSING OFFICER HAS SPECIFIC INFORMATION AVAILABLE WITH HIM TO INDICATE THAT CERTAIN PURCHASES M ADE BY THE ASSESSEE WERE NON GENUINE. IN COURSE OF ENQUIRY CONDUCTED DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS UNABLE TO SUBMIT CLINCHING EVIDENCE TO PROVE THAT THE PURCHASES WERE MADE FROM THE DECLARED SOURCES. TH ISF ACTUAL POSITION REMAINED UNAL TERED BEFORE L EARNED COMMISSIONER OF INCOME - TAX (APPEALS) AS WELL AS BEFORE US. THAT BEING THE CASE, ASSESSEES CLAIM THAT THE PURCHASES ARE GENUINE, CANNOT BE ACCEPT ED . 7 . NOW COMING TO THE CONCLUSION OF L EARNED COMMISSIONER OF INCOME - TAX (APPEALS) ON THE DISPUTED ISSUE, WE FIND THAT L EARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS ESTIMATED THE PROFIT ELEMENT EMBEDDED IN THE ALLEGED NON GENUINE PURCHASES AT 12.5% AND ACCORDINGLY GRANTED PARTIAL RELIEF TO THE ASSESSEE IN 4 I T A S 5 544 TO 5546 /MUM/2019 ASSESSMENT YEAR 2009 - 10 . W HEREAS , P ROFIT ELEMENT ESTIMATED AT 12.5% IN ASSESSMENT YEARS 2010 - 11 AND 2011 - 12 BEING MORE THAN THE DISALLOWANCE MADE BY THE ASSESSING OFFICER, HE HAS CONFIRMED THE SAME. IN OUR VIEW, THE AFORESAID DECISION OF L EARNED COMMISSIONER OF INCOME - TAX (APPEALS) IS IN CO NSONANCE WITH THE VIEW EXPRESSED BY THE TRIBUNAL IN SIMILAR NATURE OF DISPUTES. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE AFORESAID DECISION OF L EARNED COMMISSIONER OF INCOME - TAX (APPEALS) . GROUNDS ARE DISMISSED. 8 . IN THE RESULT, APPEALS ARE DISMISSE D. ORDER PRONOUNCED ON 1 5 /04/2021. S D / - S D / - ( MANOJ KUMAR AGGARWAL ) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 1 5 /04/2021 PAVANAN COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI