ITO ,WARD 3(2), KALYAN V. DINESH MADHABHAI DHEDHI, DOMBIVALI

ITA 6182/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8875 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 30-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133(6); 201; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 6182 / MUM . /201 8 ( ASSESSMENT YEAR : 2010 11 ) INCOME TAX OFFICER WARD 3(2), MUMBAI . APPELLANT V/S DINESH MADHUBHAI DHEDHI PROP. SHREERAM SWITCHGEAR B 10, SHREE GURUDATT TOWER PANDURANG WADI, MANPADA ROAD DOMBIVALI (E), KALYAN 421 201 PAN + AOKPD4634D . RESPONDENT REVENUE BY : S MT. JOTHILAKSHMI NAYAK ASSESSEE BY : NONE DATE OF HEARING 08.01.20 20 DATE OF ORDER 15.01.2020 O R D E R PER SAKTIJIT DEY. J.M. THE C APTIONED APPEAL HAS BEEN FILED BY THE REVENUE CHALLENGING A COMMON ORDER , DATED 27 TH AUGUST 201 8 , PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 1 , THANE, PERTAINING TO THE ASSESSMENT YEAR S 2010 11 AND 2011 12. HOWEVER, PRESENTLY, WE ARE CONCERNED WITH THE ASSESSMENT YEAR 2010 11 ONLY . 2 DINESH MADHUBHAI DHEDHI 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NEITHER THE ASSESSEE NOR ANY ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRES ENT THE CASE . EVEN , THERE IS NO APPLICATION FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF HEARING. IN SUCH CIRCUMSTANCES, WE CONSIDER IT APPROPRIATE TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSE SSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AN D ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN RESTRICTING THE DISALLOWANCE ON ACCOUNT OF NON GENUINE PURCHASES TO 25% AS AGAINST THE DISALLOWANCE OF THE E NTIRE PURCHASE BY THE ASSESSING OFFICER. 4. BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGE D IN THE BUSINESS OF TRADING IN ELECTRICAL GOODS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE FILED HIS RETURN OF INCOME ON 26 TH SEPTEMBER 2 010, DECLARING TOTAL INCOME OF ` 2,31,000. SUBSEQUENT L Y, ON THE BASIS OF INFORMA TION RECEIVED FROM THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, THROUGH THE OFFICE OF THE DGIT (INV.), PUNE, THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODATION BILLS PROVIDED BY CERTAIN ENTITIES IDENTIFIED BY THE SALES TAX DEPARTMENT AS HAWALA OPERATOR S , THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX AC T, 1961 (FOR SHORT 'THE ACT' ) . DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON 3 DINESH MADHUBHAI DHEDHI THE ASSESSEE TO PROVE THE GENUINENESS OF PURCHASES OF ` 10,82,311, CLAIMED TO HAVE BEEN MADE FROM SEVEN PARTIES , THROUGH PROPER DOCUMENTARY EVIDENCES. THOUG H, THE ASSESSEE FURNISHED THE PURCHASE BILLS AND LEDGER ACCOUNTS AS WELL AS THE B ANK STATEMENT, HOWEVER, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE WAS UNABLE TO PROVE THE ACTUAL DELIVERY OF GOODS. FURTHER, HE OBSERVED , THE NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT TO VERIFY THE GENUINENESS OF PURCHASES DID NOT FRUCTIFY AS THE CONCERNED SELLING DEALERS WERE NOT FOUND IN GIVEN ADDRESS. THUS, ULTIMATELY, THE ASSESSING OFFICER ADDED BACK THE ENTIRE PURCHASES OF ` 10,82,311, BY TREATING THEM AS NON GENUINE. BEING AGGRIEVED WITH THE AFORESAID ADDITION, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 5. L EARNED COMMISSIONER (APPEALS), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, RESTRICTED THE DISALLOWANCE TO 25% OF THE NON GENUINE PURCHASES. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , SIMILAR ADDITION WAS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT YEAR 2011 12 AND WHILE DECIDING ASSESSEES APPEAL, LEARNED COMMISSIONER (APPEALS) HAS RESTRICTED THE ADDITION TO ` 5,90,340, CONSIDERING THE FACT THAT THE SAID AMOUNT REPRESENTING THE SUPPRESSED GROSS PROFIT IS HIGHER THAN THE QUANTUM OF 25% OF THE NON GENUINE PURCHASES. SHE SUBMITTED , THE AFORESAID DECISION OF THE LEARNED COMMISSIONER 4 DINESH MADHUBHAI DHEDHI (APPEALS) HAS BEEN UPHELD BY THE TRIBUNAL WHILE DECIDING REVENUES APPEAL IN ITA NO.6183/MUM./2018, DATED 28 TH NOVEMBER 2019. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. THOUGH , THE ASSESSING OFFICER HAS MADE THE ADDITION OF ENTIRE PURCHAS ES TREATING THEM AS NON GENUINE, HOWEVER, LEARNED COMMISSIONER (APPEALS) HAS RESTRICTED THE ADDITION TO 25% OF SUCH PURCHASES. AS COULD BE SEEN, SIMILAR ADDITION WAS ALSO MADE BY THE ASSESSING OFFICER IN ASSESSEES OWN CASE FOR THE ASSESS MENT YEAR 2011 12 AN D LEARNED COMMISSIONER (APPEALS) HAVING FOUND THAT THE SUPPRESSED GROSS PROFIT IS MORE THAN THE QUANTUM OF 25% OF NON GENUINE PURCHASES HAD RESTRICTED THE ADDITION TO THE AMOUNT OF SUPPRESSED GROSS PROFI T. THE AFORESAID DECISION OF LEAR NED COMMISSIONER (APPEALS) HAS BEEN UPHELD BY THE TRIBUNAL IN THE DECISION REFERRED TO ABOVE. FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING THE DECISION OF THE CO ORDINATE BENCH IN ASSESSEES OWN CASE CITED S UPRA, WE UPHOLD THE ORDER OF LEARNED COMMISSIONE R (APPEALS) ON THE ISSUE. GROUNDS RAISED ARE DISMISSED. 8. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 15.01.2020 5 DINESH MADHUBHAI DHEDHI 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