MILAN SEVANTILAL DOSHI, MUMBAI V. ITO - 30 (2)(2), MUMBAI

ITA 6060/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9125 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 23-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Tangible material
• Section: 143(3); 133(6); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO . 6060 / MUM . /2018 ( ASSESSMENT YEAR : 20 11 12 ) MILAN SEVANTILAL DOSHI 2/B, ANAND ASHRAM MARVE ROAD, MALAD (WE) MUMBAI 400 064 PAN AAAPD6222H . APPELLANT V/S INCOME TAX OFFICER WARD 30(2)(2), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI CHAUDHARY ARUNKUMAR SINGH DATE OF HEARING 03 .09.2019 DATE OF ORDER 25.09. 2019 O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL BY THE ASSESSEE IS AGAINST ORDER DATED 6 TH AUGUST 2016, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 41, MUMBAI, FOR THE ASSESSMENT YEAR 2011 12. 2 . THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO THE ADDITION MADE ON ACCOUNT OF NON GENUINE PURCHASES. OF COURSE, THE ASSESSEE HAS RAISED A LEGAL GROUND CHALLENGING THE VALIDITY OF RE OPENING OF 2 MILAN SEVANTILAL DOSHI ASSESSMENT UNDER SECTION 147 OF THE INCOME - TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 3 . WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESE NT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. ACCORDINGLY, I PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL ON RECORD. 4 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 30 TH SEPTEMBER 2011, DECLARING TOTAL INCOME OF ` 10,01,290. ASSESSMENT IN CASE OF THE ASSESSEE WAS ORIGINALLY COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE OR DER DATED 18 TH MARCH 2014, ASSESSING THE TOTAL INCOME OF ` 10,41,960. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE DGIT (INV.), MUMBAI, AND THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODAT ION BILLS PROVIDED BY CERTAIN PARTIES, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF PURCHASES OF ` 1,28,33,8 60, CLAIMED TO HAVE BEEN MADE FROM MICO STEELS. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RE SELLING DEPB 3 MILAN SEVANTILAL DOSHI LICENSE THROUGH HIS PROPRIETORSHIP CONCERN M/S. MILAN OVERSEAS. IN RESPONSE TO THE QUERY RAISED BY THE ASSESSING OFF ICER, THE ASSESSEE FURNISHED PURCHASE BILLS, CORRESPONDING SALE BILL, LEDGER ACCOUNT COPY, BANK STATEMENT, ETC. TO FURTHER VERIFY AUTHENTICITY OF ASSESSEES CLAIM, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT TO THE SELLING PARTY WHI CH RETURNED BACK UNSERVED. THOUGH, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PRODUCE THE CONCERNED PARTY OR TO PROVIDE ITS CURRENT ADDRESS, HOWEVER, THE ASSESSEE WAS UNABLE TO COMPLY WITH THE AFORESAID REQUEST OF THE ASSESSING OFFICER. THUS, ULTIMA TELY, THE ASSESSING OFFICER HELD THAT THE PURCHASES CLAIMED TO H AVE BEEN MADE BY THE ASSESSEE ARE NOT GENUINE. HOWEVER, CONSIDERING THE FACT THAT THE ASSESSEE HAS SHOWN CORRESPONDING SALE S , THE ASSESSING OFFICER DISALLOWED AN AMOUNT OF ` 12.5% OUT OF THE P URCHASES OF ` 1,28,33,860, AND ADDED BACK TO THE INCOME OF THE ASSESSEE. THOUGH, THE ASSESSEE CHALLENGED THE AFORESAID ADDITION BEFORE LEARNED COMMISSIONER (APPEALS), HOWEVER, HE WAS NOT SUCCESSFUL. 5 . HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSE D THE MATERIAL ON RECORD. UNDISPUTEDLY , THE ASSESSING OFFICER HAD IN HIS POSSESSION SPECIFIC INFORMATION INDICATING THAT THE ASSESSEE HAD SHOWN PURCHASES FROM A PARTY WHICH HAS BEEN IDENTIFIED AS A HAWALA OPERATOR BY THE SALES TAX DEPARTMENT. UNDISPUTEDLY, THE AFORESAID INFORMATION 4 MILAN SEVANTILAL DOSHI RECEIVED BY THE ASSESSING OFFICER IS A TANGIBLE MATERIAL ON THE BASIS OF WHICH THE ASSESSING OFFICER WAS COMPETENT TO FORM A BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. THAT BEING THE CASE, THERE CANNOT BE ANY QUESTION WITH REGARD TO THE AUTHORITY OF THE ASSESSING OFFICER IN RE OPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT. HAVING HELD SO, NOW IT IS NECESSARY TO DEAL WITH THE MERITS OF THE ISSUE. UNDISPUTEDLY, NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE LEARNED COMMISSION ER (APPEALS) THE ASSESSEE WAS ABLE TO CONCLUSIVELY PROVE THE GENUINENESS OF PURCHASES EITHER BY PRODUCING THE PARTY OR FURNISHING ANY CONFIRMATION FROM THE CONCERNED PARTY. EVEN THE ASSESSEE WAS UNABLE TO FURNISH THE LATEST ADDRESS OF THE PARTY. THUS, THE SOURCE FROM WHICH THE ASSESSEE HAD CLAIMED TO HAVE MADE THE PURCHASES REMAINED UNVERIFIED . IN SUCH CIRCUMSTANCES, ASSESSEES CLAIM THAT THE PURCHASES FROM THE CONCERNED PARTY ARE GENUINE IS UNACCEPTABLE. OF COURSE, THE ASSESSEE HAD FURNISHED THE QUANTITATI VE DETAILS OF PURCHASE AND SALES FOR WHICH THE ASSESSING OFFICER INSTEAD OF ADDING THE ENTIRE PURCHASES HAD RESTRICTED THE ADDITION TO THE PROFIT ELEMENT BY ESTIMATING @ 12.5% OF THE NON GENUINE PURCHASES. IN MY VIEW, THE AFORESAID DECISION OF THE ASSESSIN G OFFICER IS IN ACCORDANCE WITH THE VIEW EXPRESSED BY THE TRIBUNAL IN SIMILAR NATURE OF CASE S , HENCE, REQUIRES NO INTERFERENCE FROM THIS FORUM. ACCORDINGLY, THE 5 MILAN SEVANTILAL DOSHI ADDITION MADE IS SUSTAINED. GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 6 . IN THE RESULT, APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 26 .09.2019 SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 26 .09.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI