ITO 20 (1)(2), Mumbai V. ASHOK MAHADEV NAIK, Mumbai

ITA 5727/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2980 (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: 2009-2010
• Appeal Filed On: 05-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 133(6)

Judgement Text

, , !'# IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER . 5727 / / 2019 ( '. 2009-10 ) ITA NO.5727/MUM/2019 (A.Y 2009- 10) INCOME TAX OFFICER-20(1)(2) ROOM NO.119, 1ST FLOOR, PIRAMAL CHAMBERS, LAL BAUG, PAREL, MUMBAI 400 012 ...... ) / APPELLANT ' VS. ASHOK MAHADEV NAIK, 8-10, ROCKSIDE, WALKESHWAR ROAD, MUMBAI 400 027. PAN: AACPN 1844K ..... * +!/ RESPONDENT ),/ APPELLANT BY : SHRI SUSHIL KUMAR MISHRA * +!,/ RESPONDENT BY : NONE '- + / DATE OF HEARING : 01/04/2021 ./0 - + / DATE OF PRONOUNCEMENT : 15/06/2021 !'/ ORDER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-32 MUMBAI [IN SHORT 'THE CIT(A )] DATED 17/06/2019 FOR THE ASSESSMENT YEAR 2009-10. 2. SHRI SUSHIL KUMAR MISHRA REPRESENTING THE DEPART MENT SUBMITTED THAT THE ASSESSEE HAS OBTAINED BOGUS PURCHASE BILLS TO THE T UNE OF RS.1,44,965/- FROM M/S. SAFFRON STAINLESS DURING THE PERIOD RELEVANT TO ASS ESSMENT YEAR UNDER APPEAL. SINCE, THE ASSESSEE FAILED TO DISCHARGE HIS ONUS IN PROVIN G GENUINENESS OF PURCHASES AND THE 2 ITA NO.5727/MUM/2019 (A.Y 2009-10) AFORESAID DEALER, THE ASSESSING OFFICER MADE ADDITI ON OF ENTIRE BOGUS PURCHASES. DURING ASSESSMENT PROCEEDINGS THE NOTICE ISSUED UND ER SECTION 133(6) INCOME TAX ACT,1961 ( IN SHORT 'THE ACT') TO THE DEALER BY THE ASSESSING OFFICER REMAINED UNANSWERED. IN FIRST APPELLATE PROCEEDINGS, THE CIT (A) RESTRICTED THE ADDITION ON ACCOUNT OF BOGUS PURCHASES TO RS.6,000/-. THE LD. D EPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE CIT(A) HAS FAILED TO TAKE INTO C ONSIDERATION THAT THE ASSESSEE COULD NOT PROVE GENUINENESS OF PURCHASES. THE DEAL ER FROM WHOM THE ASSESSEE HAD MADE BOGUS PURCHASES IS A DECLARED HAWALA OPERATOR. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER POINTED THAT THIS APPEAL BY THE REVENUE FALLS UNDER EXCEPTIONS PROVIDED IN PARA 10(E) OF CIRCULAR DATED 20/08/2018. 3. SUBMISSIONS MADE BY LD. DEPARTMENTAL REPRESENTAT IVE HEARD, ORDERS OF AUTHORITIES BELOW EXAMINED. UNDISPUTEDLY, THE ASSE SSEE FAILED TO PROVE GENUINENESS OF PURCHASES AND AUTHENTICITY OF THE VENDOR/DEALER FROM WHOM DISPUTED PURCHASES WERE MADE. AT THE SAME TIME THE ASSESSING OFFICER HAS ACCEPTED THE SALES TURNOVER DECLARED BY THE ASSESSEE. WITHOUT PURCHASES THERE C ANNOT BE SALES. THEREFORE, ENTIRE ALLEGED BOGUS PURCHASES CANNOT BE ADDED, IT IS ONLY THE PROFIT ELEMENT EMBEDDED IN SUCH TRANSACTIONS THAT CAN BE TAXED [RE: PCIT VS. M /S. PARAMSHAKTI DISTRIBUTORS PVT. LTD., INCOME TAX APPEAL NO.413 OF 2017, DECIDED ON 15 TH JULY, 2019 BY HONBLE BOMBAY HIGH COURT]. THE CIT(A) HAS RESTRICTED THE A DDITION TO RS.6,000/- I.E. TO THE EXTENT OF VAT AMOUNT SAVED BY THE ASSESSEE ON SUCH BOGUS PURCHASES. I FIND NO INFIRMITY IN THE IMPUGNED ORDER, THEREFORE, THE SAM E IS UPHELD AND APPEAL OF THE REVENUE IS DISMISSED BEING DEVOID OF ANY MERIT. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY, THE 15 TH DAY OF JUNE, 2021. SD/- (VIKAS AWASTHY) ! / JUDICIAL MEMBER / MUMBAI, 2!'/ DATED 15/06/2021 VM , SR. PS (O/S) 3 ITA NO.5727/MUM/2019 (A.Y 2009-10) COPY OF THE ORDER FORWARDED TO : 1. ) / THE APPELLANT , 2. * +! / THE RESPONDENT. 3. 3+ ( )/ THE CIT(A)- 4. 3+ CIT 5. 45* + ' , . . . , / DR, ITAT, MUMBAI 6. 56789 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI