ASST. CIT 23 (3), Mumbai V. SUNIL BADRIPRASAD BADSIWAL , Mumbai

ITA 5711/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2979 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Accommodation entries

Judgement Text

, , ! IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER . 5711 / / 2019 (%. 2010-11 ) ITA NO.5711/MUM/2019 (A.Y 2010-11 ) . 5712 / / 2019 (%. 2011-12 ) ITA NO.5712/MUM/2019 (A.Y 2011-12 ) ASSTT. COMMISSIONER OF INCOME TAX-23(3) ROOM NO.104, 1 ST FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI 400 007 ...... ' / APPELLANT % VS. SHRI SUNIL BADRI PRASAD BADSIWAL PLOT NO.4, KHERWADI, BANDRA (E), MUMBAI 400 051 PAN: AFAPB-9655D ..... ()/ RESPONDENT '*/ APPELLANT BY : SHRI SUSHIL KUMAR MISHRA ()*/ RESPONDENT BY : NONE %+) / DATE OF HEARING : 01/04/2021 ,-. +) / DATE OF PRONOUNCEMENT : 15/06/2021 / ORDER THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAI NST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-34, MUMBAI [IN SHORT 'THE CIT(A)] DATED 07/05/2019, COMMON FOR ASSESSMENT YEARS 2010-11 AND 2011-12. SINCE, THE FACTS IN THESE APPEALS AND THE GROUNDS RAISED BY THE REVENUE ARE IDENTICAL, THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DECIDED BY THIS COMMON ORDER. 2 ITA NO.5711/MUM/2019 (A.Y 2010-11) ITA NO.5712/MUM/2019 (A.Y 2011-12) 2. SHRI SUSHIL KUMAR MISHRA REPRESENTING THE DEPART MENT NARRATING THE FACTS SUBMITTED THAT THE ASSESSEE IS A CONTRACTOR. THE A SSESSMENTS IN THE CASE OF ASSESSEE FOR ASSESSMENT YEAR 2010-11 AND 2011-12 WERE REOPEN ED ON THE BASIS OF INFORMATION RECEIVED FROM DGIT(INVESTIGATION), MUMB AI THAT THE ASSESSEE IS ONE OF THE BENEFICIARIES OF ACCOMMODATION ENTRIES PROVIDED BY SHRI PADMACHANDAN ENTERPRISES, A DECLARED HAWALA OPERATOR. THE LD. DE PARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE OBTAINED BOGUS PURCHAS E BILLS FROM SHRI PADMACHANDAN ENTERPRISES AMOUNTING TO RS.30,44,157/- DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2010-11 AND AMOUNTING TO RS.3,45,560/- DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2011-12. IN ASSESSMENT PROCEEDINGS, THE ASSESSEE FAILED TO PROVE GENUINENESS OF PURCHASES AND THE DEALER. THE ASSESS ING OFFICER DISALLOWED 25% OF TOTAL BOGUS PURCHASES AND MADE ADDITION OF RS.7,61, 040/- IN ASSESSMENT YEAR 2010- 11 AND RS.1,15,044/- IN ANY ASSESSMENT YEAR 2011-12 . IN FIRST APPELLATE PROCEEDINGS, THE CIT(A) RESTRICTED THE ADDITION TO 12.5% OF BOGU S PURCHASES. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER AFTER EXAMINING THE FACTS WAS VERY FAIR AND REASONABLE IN MAKING ADDITION OF 25% OF BOGUS PURCHASES. THE LD. DEPARTMENTAL REPRESENTATIVE PRAYED FOR REVERSING TH E FINDINGS OF CIT(A) AND UPHOLDING THE ADDITION MADE IN ASSESSMENT ORDER. 3. SUBMISSIONS MADE BY LD. DEPARTMENTAL REPRESENTAT IVE HEARD, ORDERS OF AUTHORITIES BELOW EXAMINED. UNDISPUTEDLY, THE ASSES SEE FAILED TO DISCHARGES HIS ONUS IN PROVING GENUINENESS OF PURCHASES FROM HAWALA OPE RATOR. THE CIT(A) HAS UPHELD THE FINDINGS OF ASSESSING OFFICER IN TREATING PURCH ASES MADE FROM HAWALA OPERATOR AS BOGUS, HOWEVER, THE CIT(A) HAS RESTRICTED THE ADDIT ION TO 12.5% OF SUCH PURCHASES. AFTER EXAMINING THE FACTS, I AM OF CONSIDERED VIEW THAT ESTIMATION OF PROFIT MARGIN BY THE ASSESSING OFFICER ON BOGUS PURCHASES IS ON HIGH ER SIDE. I CONCUR WITH THE FINDINGS OF CIT(A) IN RESTRICTING THE ADDITION TO 12.5% OF B OGUS PURCHASES. THE IMPUGNED ORDER WARRANTS NO INTERFERENCE, HENCE, THE SAME IS UPHELD AND APPEAL OF THE 3 ITA NO.5711/MUM/2019 (A.Y 2010-11) ITA NO.5712/MUM/2019 (A.Y 2011-12) REVENUE FOR ASSESSMENT YEAR 2010-11 AND 2011-12, RE SPECTIVELY ARE DISMISSED SANS- MERIT. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY, THE 15 TH DAY OF JUNE, 2021. SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER / MUMBAI, 0%/ DATED 15/06/2021 VM , SR. PS (O/S) COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT , 2. () / THE RESPONDENT. 3. 1) ( )/ THE CIT(A)- 4. 1) CIT 5. 23()% , . . . , / DR, ITAT, MUMBAI 6. 34567 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI