INCOME TAX OFFICER 32 (1) (4), Mumbai V. SHRI DEEPAK KANTILAL SHAH, Mumbai

ITA 5790/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8169 (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: 2011-2012
• Appeal Filed On: 09-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Bogus purchase

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI , ! , $ BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER . 5790 // 20 19 (. . 2011-12 ) ITA NO.5790/MUM/2019 (A.Y.2011-12) ITO-32(1)(4), ROOM NO. 706, 7 TH FLOOR, KAUTILYA BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI-400051. ...... + / APPELLANT VS. SHRI DEEPAK KANTILAL SHAH, 402, GPOAL PURI, N.R. DAULAT NAGAR, S. V. ROAD, BORIVALI (E), MUMBAI-400066. PAN: ASAPS9234L ..... ,./ RESPONDENT + // APPELLANT BY : SH. SANJAY J. SETHI ,. // RESPONDENT BY : SH. ANIL THAKRAR 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 [HEREI NAFTER REFERRED TO AS THE CIT(A)] DATED 07.05.2019 FOR THE ASSESSMENT Y EAR 2011-12. 2 . 5790 //20 19 (. .2011-12 ) ITA NO.5790/MUM/2019 (A.Y.2011-12) 2. SH. SANJAY J. SETHI REPRESENTING THE DEPARTMENT SUBMITTED THAT DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR (AY) UNDER A PPEAL, THE ASSESSEE HAD OBTAINED BOGUS PURCHASE BILLS AMOUNTING TO RS. 51,3 1,646/- FROM FIVE DEALERS, DECLARED AS HAWALA OPERATORS BY THE SALES TAX DEPAR TMENT, GOVERNMENT OF MAHARASHTRA. DURING ASSESSMENT PROCEEDINGS, THE ASS ESSEE NEITHER PRODUCES THE SAID DEALERS NOR ANY CONFIRMATIONS FROM THEM WE RE FILED. NO DOCUMENT WAS FURNISHED BY THE ASSESSEE TO PROVE TRAIL OF GOO DS. THUS, THE ASSESSEE FAILED TO DISCHARGE HIS ONUS IN PROVING AUTHENTICITY OF TH E DEALERS AND THE PURCHASES MADE FROM SUSPICIOUS DEALERS. THE ASSESSING OFFICER (AO) AFTER CONSIDERING THE ENTIRE FACTS ESTIMATED GROSS PROFIT (GP) @ 12.5% ON BOGUS PURCHASES AND MADE ADDITION OF RS. 6,41,456/-. IN FIRST APPELLATE PROCEEDINGS, THE CIT(A) RESTRICTED THE ADDITION TO 8% OF THE BOGUS PURCHASE S. THE LD. DR PRAYED FOR RESTORING THE FINDINGS OF AO. 3. SH. ANIL THAKRAR APPEARING ON BEHALF OF THE ASSE SSEE SUBMITTED THAT THE CIT(A) HAS RESTRICTED THE ADDITION TO 8% BY PLACING RELIANCE ON THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 2405/MUM /2017 AND 2406/MUM/2017 FOR AY 2009-10 & 2010-11, RESPECTIVEL Y DECIDED ON 07.06.2017. THE LD. AUTHORIZED REPRESENTATIVE (AR) POINTED THAT THE NATURE OF TRANSACTIONS AND MANNER OF DISALLOWANCE IN THE IMPU GNED AY ARE IDENTICAL. THE LD. AR PRAYED FOR CONFIRMING THE FINDINGS OF CIT(A) AND DISMISSING THE APPEAL BY REVENUE. 4. BOTH SIDES HEARD, ORDERS OF AUTHORITIES BELOW EX AMINED. WE FIND THAT THE CIT(A) HAS RESTRICTED THE DISALLOWANCE IN RESPE CT OF BOGUS PURCHASES TO 8% BY FOLLOWING THE ORDER OF CO-ORDINATE BENCH IN ASSE SSEES OWN CASE FOR PRECEDING AYS IN ITA NO. 2405 & 2406 /MUM/2017 (SUP RA). BOTH SIDES ARE 3 . 5790 //20 19 (. .2011-12 ) ITA NO.5790/MUM/2019 (A.Y.2011-12) UNANIMOUS IN STATING THAT THE FACTS IN THE IMPUGNED AY ARE IDENTICAL TO THE FACTS IN THE PRECEDING AYS ADJUDICATED BY THE TRIBU NAL. THE CIT(A) HAS GRANTED PARTIAL RELIEF TO THE ASSESSEE BY FOLLOWING THE TRI BUNAL ORDER IN ASSESSEES OWN CASE. WE SEE NO INFIRMITY IN THE IMPUGNED ORDER, HE NCE, 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