DINESH METAL INDUSTRIES, MUMBAI V. ITO - 18(1)(4), MUMBAI

ITA 5971/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8000 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 07-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Accommodation entries
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI BEFORE SHRI G.S. PANNU, HON'BLE ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA.NO. 5971 /MUM/201 6 (A.Y: 2009 - 10 ) M/S. DINESH METAL INDUSTRIES GR. FLOOR. 159 , KIKA STREET, GULALWADI, MUMBAI 400 002 PAN NO: AAAFD 1308 G V. INCOME TAX OFFICER 18(1) - 4 MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI V . JUSTIN DATE OF HEARING : 04.12. 2017 DATE OF PRONOUNCEMENT : 20 .12 .2017 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 29, MUMBAI DATED 26.07.2016 FOR THE ASSESSMENT YEAR 2009 - 10. THE ONLY GRIEVANCE OF THE ASSESSEE IN ITS APPEAL IS IN RESPECT OF CONFIRMATION OF ESTIMATION OF PROFIT ELEMENT AT 12.5% OF THE PURC HASES TREATED AS NON - GE NUINE BY THE ASSESSING OFFICER. 2 ITA.NO.5971/MUM/2016 (A.Y: 2009 - 10) M/S. DINESH METAL INDUSTRIES 2. IN SPITE OF ISSUE OF NOTICE TO THE ASSESSEE , NONE APPEARED NOR ANY ADJOURNMENT WAS SOUGHT. THUS WE DISPOSE OFF THIS APPEAL ON MERITS ON HEARING THE LD.DR. 3. LD.DR SUBMITS THAT IN THIS CASE ASSESSMENT W AS REOPENED U/S. 147 OF THE ACT BASED ON THE INFORMATION RECEIVED FROM DGIT ( INVESTIGATION ), MUMBAI , WHEREIN THE INFORMATION HAS BEEN GIVEN BY THE SALES TAX DEPARTMENT THAT SOME OF THE DEALERS INDULGED IN PROVIDING ACCOMMODATION ENTRIES IN THE FOR M OF ISSUE OF BOGUS SALES BILLS/TAX INVOICES WITHOUT MOVEMENT OF ANY GOODS. LD.DR SUBMITS THAT AS THE ASSESSEE IS ONE OF THE BENEFICIARIES IN OBTAINING THE B OGUS PURCHASES BILLS FROM THE DEALERS APPEARING IN THE SALES TAX DEPA RTMENT WEBSITE, T HE ASSESSING OFFI CER REQUIRED THE ASSESSEE TO PROVE THE GENUINENESS OF THE PURCHASES MADE BY THE ASSESSEE FROM VARIOUS DEALERS REFERRED TO IN PAGE N O S . 1 AND 2 OF THE ASSESSMENT ORDER. ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS SUBMITTED THE COPIES OF INVOICES, DELI VERY CHALLAN S, BANK STATEMENT, LEDGER ACCOUNT ETC., TO PROVE THE TRANSACTIONS TO BE GENUIN E. HOWEVER, ASSESSING OFFICER TAKING NOTE OF THE CONFIRMATIONS FROM HAWALA DEALERS THAT THE GOODS WERE NOT SUPPLIED TO THE ASSESSEE AND F URTHER , DELIVERY CHALLANS , T RANSPORT RECEIPTS , OCTROI RECEIPT FOR PAYMENT OF OCTROI DUTY , RECEIPT OF WEIGHBRIDGE FOR WEIGHMENT OF GOODS, EXCISE GATE PASS, GOODS INWARD REGISTER MAINTAINED AT GODOWN/WAREHOUSE 3 ITA.NO.5971/MUM/2016 (A.Y: 2009 - 10) M/S. DINESH METAL INDUSTRIES ETC., WERE NOT FURNISHED, AND SINCE THE ASSESSEE CO U LD NOT FURN IS H THE COMPLETE DETAILS TO PROVE T HE GENUINENESS OF THE PURCHASES, ASSESSING OFFICER ESTIMATED THE PROFIT EL EMENT IN SUCH PURCHASES AT 12.5% AND MADE DISALLOWANCE ACCORDINGLY. LD.DR SUBMITS THAT ON APPEAL LD.CIT(A) SUSTAINED THE DISALLOWANCE. LD.DR VEHEMEN TLY SUPPORTED THE O RDERS OF THE LOWER AUTHORITIES. 4. WE HAVE HEARD THE LD.DR AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IT IS THE FINDING OF THE ASSESSING OFFICER THAT THE ASSESSEE CO U LD NOT PRODUCE DELIVERY CHALLANS, TRANSPORT RECEIPTS, OCTROI RECEIP T FOR PAYMENT OF OCTROI DUTY , RECEIPT OF WEIGHBRIDGE FOR WEIGHMENT OF GOODS, EXCISE GATE PASS, GOODS INWARD REGISTER MAINTAINED AT GODOWN/WAREHOUSE ETC., AND THEREFORE THE GENUINENESS OF THE PURCHASES WERE NOT PROVED. THE FINDINGS OF THE ASSESSING OFFICER WERE ALSO UPHELD BY THE LD.CIT(A). FURTHER, WE FIND THAT LD.CIT(A) FOLLOWING THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V . SIMIT P . SETH [356 ITR 451] HELD THAT ONCE THE SALE IS ACCEPTED BY THE ASSESSING OFFICER THE VERY BASIS OF THE PURCHASES CO U LD NOT BE QUESTION ED AND NOT ENTIRE PURCHASE PRICE COULD BE DISALLOWED BUT ONLY THE PROFIT ELEMENT EMBEDDED IN SUCH PURCHASES COULD BE TREA TED AS INCOME OF THE ASSESSEE. THEREFORE , LD.CIT(A) UPHELD THE ACTION OF T H E ASSESSING OFFICER IN ESTIMATI N G THE PROFIT FROM SUCH PURCHASES AT 12.5%. THE FINDINGS OF THE LOWER AUTHORITIES 4 ITA.NO.5971/MUM/2016 (A.Y: 2009 - 10) M/S. DINESH METAL INDUSTRIES WERE NOT REBUTTED BEFORE US AND THE DECISION OF THE LD.CIT(A) IS I N TUNE WITH THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V . SIMIT P. SETH (SUPRA). THUS, W E SEE N O GOOD REASON TO INTERFERE WITH THE FINDINGS AND THE DECISION OF THE LD.CIT(A). ACCORDINGLY, THE ORDER OF THE LD.CIT(A) IS UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE ARE REJECTED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRON OUNCED IN THE OPEN COURT ON THE 20 TH DECEMBER , 2017. SD/ - SD/ - ( G.S. PANNU ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 20 / 12 / 2017 GIRIDHAR , SPS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM BAI