ACIT-26(1), MUMBAI , MUMBAI V. AURO ENGINEERING , MUMBAI

ITA 6197/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6374 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Bogus purchase
• Section: 143(3); 143(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6197/M/2019 ASSESSMENT YEAR: 2010-11 ACIT-26(1), ROOM NO.302, 3 RD FLOOR, KAUTILYA BHAVAN, BKC BANDRA, MUMBAI 400 051 VS. M/S. AURO ENGINEERING, F-119, ANSA INDUSTRIAL ESTATE SAKI VIHAR ROAD, ANDHERI EAST, MUMBAI 400 072 PAN: AAAFA4389G (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : MS. SMITA VERMA, D.R. DATE OF HEARING : 30.06.2021 DATE OF PRONOUNCEMENT : 08.07.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVENU E AGAINST THE ORDER DATED 15.03.2019 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2010-11. 2. AT THE TIME OF HEARING WHEN THE CASE WAS CALLED FOR HEARING, NEITHER ASSESSEE NOR HIS AUTHORISED REPRESENTATIVE WAS PRESENT TO ATTEND THE HEARING NOR ANY APPLICATION FOR ADJOU RNMENT WAS FILED. THEREFORE, WE ARE DECIDING THE APPEAL OF TH E REVENUE AFTER HEARING THE LD. D.R. AND AFTER CONSIDERING THE MERI TS OF THE CASE. ITA NO.6197/M/2019 M/S. AURO ENGINEERING 2 3. THE ONLY ISSUE RAISED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A) RESTRICTING THE ADDITION TO 28% OF THE B OGUS PURCHASES AS AGAINST 100% MADE BY THE AO. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED T HE RETURN OF INCOME ON 28.09.2010 DECLARING TOTAL INCOME OF RS.31,29,710/- WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT . THE CASE OF THE ASSESSEE WAS THEREAFTER REOPENED BY THE AO A FTER RECEIPT OF INFORMATION FROM DGIT (INV.), MUMBAI THAT ASSESS EE IS BENEFICIARY OF HAWALA PURCHASE ENTRIES TO THE EXTEN T OF RS.1,20,159/- AND ACCORDINGLY THE NOTICE UNDER SECT ION 148 OF THE ACT WAS ISSUED ON 04.03.2015. THE AO CALLED FO R VARIOUS DETAILS AND INFORMATION FROM THE ASSESSEE FROM TIME TO TIME DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHICH W ERE DULY FILED BEFORE THE AO. THE AO FINALLY REJECTED THE C ONTENTIONS OF THE ASSESSEE AND TREATED THE PURCHASES AS NON GENUI NE THEREBY MAKING AN ADDITION OF BEING 100% OF THE PURCHASES W HICH COMES TO RS.1,20,159/- TO THE INCOME OF THE ASSESSE E BY FRAMING ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 1 47 OF THE ACT DATED 21.11.2015. 5. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) PAR TLY ALLOWED THE APPEAL OF THE ASSESSEE BY DIRECTING THE AO TO A PPLY RATE OF 28% OF THE BOGUS PURCHASES BY FOLLOWING THE DECISIO N OF CIT VS. SIMIT P. SHETH (2013) 356 ITR 451 (GUJ) BY HOLDING THAT ONLY PROFIT EMBEDDED IN THE BOGUS PURCHASES CAN BE BROUG HT TO TAX AND NOT THE ENTIRE PURCHASES. 6. AFTER HEARING THE LD. D.R. AND PERUSING THE MATE RIAL ON RECORD, WE OBSERVE THAT LD. CIT(A) HAS PASSED THE A PPELLATE ITA NO.6197/M/2019 M/S. AURO ENGINEERING 3 ORDER AFTER FOLLOWING THE DECISION OF HONBLE GUJAR AT HIGH COURT IN THE CASE OF CIT VS. SIMIT P. SHETH (SUPRA) WHERE IN IT HAS BEEN HELD THAT IN CASE OF BOGUS PURCHASES ONLY PROFIT EL EMENT EMBEDDED IN THE BOGUS PURCHASES IS TO BE ASSESSED. WE NOTE THAT THE CO-ORDINATE BENCHES OF THE TRIBUNAL HAVE B EEN TAKING A CONSISTENT VIEW THAT IN CASE OF BOGUS PURCHASES ONL Y A GP RATE RANGING BETWEEN 2% TO 12.5% WHEREAS THE LD. CIT(A) HAS DIRECTED TO ASSESS THE INCOME @ 28% WHICH IS ON HIG HER SIDE AND THEREFORE WE DO NOT FIND ANY REASON WHY THE REVENUE IS AGGRIEVED BY THIS ORDER. ACCORDINGLY, WE UPHOLD TH E ORDER OF THE LD CIT(A) BY DISMISSING THE APPEAL OF THE REVENUE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.07.2021. SD/- SD/- (SAKTIJIT DEY ) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 08.07.2021. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.