ITO WARD 3 (5), KALYAN V. RUPESH P. BHATIA, DOMBIVALI

ITA 6273/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6459 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 01-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(1); 201; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 6273 / MUM . /201 8 ( ASSESSMENT YEAR : 20 11 12 ) INCOME TAX OFFICER WARD 3(5), MUMBAI . APPELLANT V/S RUPESH P. BHATIA C/O S.S. SUBEY, B WING 3, RAMESHWAR KRUPADHAM CHS BADASAHEB JOSHI MARG, PHADKE X ROAD DOMBIVALI (E), KALYAN 421 201 PAN AATPB6537E . RESPONDENT REVENUE BY : S MT. JOTHILAKSHMI NAYAK ASSESSEE BY : SHRI N.A. KULKARNI DATE OF HEARING 08.01.2020 DATE OF ORDER 05.02.2020 O R D E R PER SAKTIJIT DEY. J.M. THE CAPTIONED APPEAL HA S BEEN FILED BY THE REVENUE CHALLENGING THE ORDER DATED 6 TH AUGUST 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 1, THANE, FOR THE ASSESSMENT YEAR 201 0 11 AND 2011 12. HOWEVER, IN THE PRESENT APPEAL, WE ARE CONCERNED WITH THE ASSESSMENT YEAR 2011 12 ONLY. 2 RUPESH P. BHATIA 2. THE GROUNDS RAISE BY THE REVENUE ARE ON THE COMMON ISSUE OF PARTIAL RELIEF GRANTED BY LEARNED COMMISSIONER (APPEALS) IN THE MATTER OF ADDITION MADE ON ACCOUNT OF NON GENUINE PURCHASE S . 3. BRIEF FACTS ARE, THE ASSESSEE , AN INDIVIDUAL , IS ENGAGED IN SUPPLY OF ENGINEERING GOODS. FOR THE ASSESSMENT YEAR UNDER CONSI DERATION, THE ASSESSEE FILED HI S RETURN OF INCOME ON 29 TH SEPTEMBER 2011, DECLARING TOTAL INCOME OF ` 5,99,480. THOUGH, INITIALLY, THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) OF THE ACT, HOWEVER, SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE SALES TAX DEPARTMEN T, GOVERNMENT OF MAHARASHT RA, THROUGH THE OFFICE OF THE DGIT (INV.), PUNE, REVEALING THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODATION BILLS PROVIDED BY CERTAIN HAWALA OPERATOR S, THE ASSESSMENT WAS RE OPENED UNDER SECTION 147 OF THE ACT. DURING THE ASSES SMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF PURCHASES AMOUNTING TO ` 15,19,553, CLAIMED TO HAVE BEEN MADE DURING THE YEAR FROM CERTAIN PARTIES. AS OBSERVED BY THE ASSESSING OFFICER, IN RESPONSE TO THE QUERY RAISED, THE ASSESSEE DID NOT FURNISH ANY EVIDENCE ON THE PLEA THAT DUE TO A THEFT COMMITTED IN ITS BUSINESS PREMISES, THE COMPUTERS AND ALL OTHER RELEVANT DOCUMENTS HAVE BEEN STOLEN , HENCE, HE IS NOT IN A POSSESSION TO FURNISH ANY EVIDENCE. DU E TO NON FUR NISHING OF EVIDENCE BY THE ASSESSEE, THE ASSESSING OFFICER TREATED THE ENTIRE PURCHASES OF 3 RUPESH P. BHATIA ` 15,19,553, AS NON GENUINE AND ADDED BACK TO THE INCOME OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) RESTRICTED THE DISALLOWANCE / ADDITION TO THE EXTENT OF 25% OF THE NON GENUINE PURCHASES. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE R ELYING UPON THE OBSERVATIONS OF THE ASSESSING OFFICER SUBMITTED , SINCE THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE TO PROVE THE PURCHASES, THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING 100% ADDITION. 6. THE LEARNED AUTHORISED REPRESENTATIVE STRONGLY RELY ING UPON THE ORDER PASSED BY LEARNED COMMISSIONER (APPEALS) SUBMITTED , CONSIDERING THE FACT THAT THE ADDITION HAS BEEN MADE @ 25% , WHICH HAS BEEN ACCEPTED BY THE ASSESSEE, REVENUES APPEAL SHOULD BE DISMISSED. 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THOUGH , IT MAY BE A FACT THAT BEING NOT SATISFIED WITH THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSING OFFICER HAS ADDED THE ENTIRE PURCHASES BY TREATING THEM AS NON GENUINE, HOWEVER, LEARNED COMMISSIONER (APPEALS) TAKING NOTE OF THE FACTUAL POSITION HAS 4 RUPESH P. BHATIA RESTRICTED THE ADDITION TO 25% OF THE NON GENUINE PURCHASES. IN OUR CONSIDERED OPINIO N, THE AFORESAID DECISION OF LEARNED COMMISSIONER (APPEALS) IS IN ACCORDANCE WITH THE RATIO LAID DOWN IN VARIOUS JUDICIAL PRECEDENT S , HENCE, DOES NOT REQUIRE ANY MODIFICATION. ACCORDINGL Y, UPHOLDING THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THE ISSUE, WE DISMISS THE GROUNDS RAISED. 8. IN THE RESULT, APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 05.02.2020 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 05.02.2020 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