INCOME TAX OFFICER 32(1) (4) , Mumbai V. SHRI DALARAM P PATEL, Mumbai

ITA 5789/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8170 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Bogus purchase
• Section: 133(6)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI , ! , $ BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER . 5789 // 20 19 (. . 2010-11 ) ITA NO.5789/MUM/2019 (A.Y.2010-10) ITO-32(1)(4), ROOM NO. 706, 2 ND FLOOR, KAUTILYA BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI-400051. ...... + / APPELLANT VS. SHRI DALARAM P. PATEL, 46/A, 2 ND FLOOR, GAJAWALA APARTMENTS, S.V. ROAD, BORIVALI (W), MUMBAI-400092. PAN: AIRPP1042L ..... ,./ RESPONDENT + // APPELLANT BY : SH. SANJAY J. SETHI ,. // RESPONDENT BY : NONE 0 / DATE OF HEARING : 09/06/2021 0 / DATE OF PRONOUNCEMENT : 30/07/2021 / ORDER PER VIKAS AWASTHY, J.M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-46, MUMBAI [HE REINAFTER REFERRED TO AS THE CIT(A)] DATED 04.06.2019 FOR THE ASSESSMENT Y EAR 2010-11. 2 . 5789 //20 19 (. .2010-11 ) ITA NO.5789/MUM/2019 (A.Y.2010-11) 2. SH. SANJAY J. SETHI REPRESENTING THE DEPARTMENT SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO FOUND THAT ASSESSEE HAS OBTAINED BOGUS PURCHASE BILLS AMOUNTING TO RS. 62,3 9,443/- FROM FIVE DEALERS, DECLARED AS HAWALA OPERATORS BY THE SALES TAX DEPAR TMENT, GOVERNMENT OF MAHARASHTRA. THE AO ISSUED NOTICE TO THE SAID DEALE RS UNDER SECTION 133(6) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO A S THE ACT]. THE SAID NOTICES WERE RECEIVED BACK UNSERVED FROM THE POSTAL AUTHORI TIES WITH REMARKS NOT KNOWN/LEFT. DURING ASSESSMENT PROCEEDINGS, THE ASS ESSEE COULD NEITHER FILE CONFIRMATIONS NOR PRODUCE THE DEALERS, NO DOCUMENTA RY EVIDENCES VIZ. OCTROI RECEIPTS, STOCK REGISTER, LORRY RECEIPTS, ETC. WAS FURNISHED BY THE ASSESSEE TO PROVE TRAIL OF GOODS. THE AO ESTIMATED GP @ 25% AND MADE ADDITION OF RS. 15,59,861/-. AGAINST THE ASSESSMENT ORDER, THE ASSE SSEE FILED APPEAL BEFORE THE CIT(A), THE CIT(A) RESTRICTED THE DISALLOWANCE ON BOGUS PURCHASES TO 12.5%. THE LD. DR VEHEMENTLY DEFENDING THE ASSESSMENT ORDE R AND PRAYED FOR RESTORING THE GP ESTIMATED BY THE AO. 3. SUBMISSIONS MADE BY LD. DR HEARD, ORDERS OF THE AUTHORITIES BELOW EXAMINED. THE ASSESSEE IS ENGAGED IN TRADING OF BUI LDING MATERIAL ETC. UNDISPUTEDLY, THE ASSESSEE FAILED TO DISCHARGE HIS ONUS IN PROVING AUTHENTICITY OF THE FIVE DEALERS AS MENTIONED IN THE ASSESSMENT ORDER AND THE PURCHASES MADE FROM SAID DEALERS. SINCE, THE AO ACCEPTED SALE S TURNOVER DECLARED BY THE ASSESSEE, THE AO ESTIMATED GP ON ALLEGED PURCHASES AT 25%. IN FIRST APPELLATE PROCEEDINGS, THE CIT(A) UPHELD THE FINDINGS OF AO T O THE EXTENT OF ASSESSEES INVOLVEMENT IN OBTAINING BOGUS PURCHASE BILLS. THE CIT(A) FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 5117/ MUM/2016 FOR AY 2011-12 DECIDED ON 09.08.2017 RESTRICTED THE ESTIMATED GP O N ALLEGED BOGUS PURCHASES 3 . 5789 //20 19 (. .2010-11 ) ITA NO.5789/MUM/2019 (A.Y.2010-11) TO 12.5%. WE ARE OF CONSIDERED VIEW THAT ESTIMATION OF SUPPRESSED PROFIT MARGIN BY THE AO WAS ON HIGHER SIDE. WE FIND NO INF IRMITY IN THE IMPUGNED ORDER, HENCE, THE SAME IS UPHELD AND APPEAL OF THE REVENUE IS DISMISSED, SANS MERIT. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY , THE 30 TH DAY OF JULY, 2021. SD/- SD/- (MANOJ KUMAR AGGARWAL) (VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, 4/ DATED: 30/07/2021 SK, PS , ! , ! , ! , ! COPY OF THE ORDER FORWARDED TO : 1. + / THE APPELLANT , 2. ,. / THE RESPONDENT. 3. 5 ( )/ THE CIT(A)- 4. 5 CIT 5. , , . . . , / DR, ITAT, MUMBAI 6. 9 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI