BANWARILAL VISHWAKARMA, MUMBAI V. ACIT CIR. 21(1), MUMBAI

ITA 6552/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0111 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: KEYURI DESAI
• Keywords: Bogus purchase
• Section: 143(3); 133(6); 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ITA NO. 6552 / MUM/ 20 1 6 ( / ASSESSMENT YEAR: 2 0 09 - 10 ) SHRI BANWARILAL VISHWAKARMA, SHOP NO.15, AKANSHA APARTMENTS, VEER NARIMAN ROAD, PRABHADEVI, MUMBAI - 400025 / VS. ASSTT.COMMISSIONER OF INCOME TAX CIRCLE 21 (1), AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ( / APPELLANT) : ( / RESPONDENT ) ./ PAN : ABQPV6782R ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : MS.KEYURI DESAI / RESPONDENT BY : SHRI PURUSHOTTAM KUMAR / DATE OF HEARING : 1 8 .6. .2017 / DATE OF PRONO UNCEMENT : 28. 8 . 201 7 / O R D E R PER RAJESH KUMAR, A. M: THE CAPTIONED IS A APPEAL BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2009 - 20 10 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 33 , MUMBAI , DATED 11. 8. 201 6 WHICH IN TURN HAS ARISE N FROM AN ORDER PASSED 2 ITA NO. 6552 /MUM/201 6 BY THE ASSESSING OFFICER DATED 2 5 .3.201 5 UNDER SECTION 143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961(IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEAL, HOWEVER, THE MAIN ISSUE IS QUA CONFIRMATION OF DISALL OWANCE TO THE EXTENT OF 25% OF THE BOGUS PURCHASE S OF RS.65,88,097/ - AS MADE BY THE AO ON ACCOUNT OF NON - GENUINE PURCHASES. 3. FACTS OF THE CASE ARE THE AO RECEIVED INFORMATION FROM THE SALES TAX DEPARTMENT, MUMBAI, THAT THE ASSESSEE HAS AVAILED ENTRIE S OF BOGUS PURCHASES FROM VARIOUS PARTIES AND ACCORDINGLY THE CASE OF THE ASSESSEE WAS REOPENED VIDE NOTICE U/S 148 OF THE ACT DATED 18.3.2014 WHICH WAS SERVED ON THE ASSESSEE ON 24.3.2014. THE ASSESSEE COMPL IED WITH THE NOTICE ISSUED U/S 148 OF THE ACT , BY FILING THE RETURN OF INCOME ON 28.3.2014 DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESSEE FILED AND FURNISHED THE COPIES OF INVOICES, LEDGER ACCOUNT, BANK STATEMENT REGARDING PURCHASES FROM THE ALLEGED PARTIES M/S CARBON ENTERPRISES, AJAY STONES, JINKUSHAL EXPORT PVT LTD, CHANDRANAMD TRADING PVT LTD, AMBERSHWAR TRADING PVT.LTD AND LEKAH TRADING PVT LTD. FROM WHOM THE TOTAL PURCHASES OF RS.65,88,097/ - WERE MADE. MOREOVER, THE NOTICES SENT U/S 133(6) WERE RETURNED UNSERVED AND THE ASSESSEE CO ULD NOT FURNISH CONFIRMATION S FROM THE ABOVE SAID PARTIES EXCEPT THE FACT THAT THE 3 ITA NO. 6552 /MUM/201 6 PAYMENT S WERE MADE BY CHEQUE S ETC. FINALLY, THE AO ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE ON THE GROUND THAT THE SAID PURCHASE S REMAINED UNVERIFIED . 4. IN THE APPELLATE PROCEEDINGS, THE LD.CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE BY SUSTAINING 25% OF THE TOTAL PURCHASES AFTER CONSIDERING THE VARIOUS CONTENTIONS AND SUBMISSIONS OF THE ASSESSEE. 5 . WE HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE P ARTIES AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT IN THE PRESENT CASE ALL THE SUPPLIERS WERE DECL ARE D TO BE HAWALA PARTIES A ND THE ASSESSEE COULD NOT PRODUCE THE PARTIES BEFORE THE AO FOR VERIFICATIO N OF MATERIALS PURCHASED. THE ASSESSEE FAILED TO PRODUCE ANY STOCK TALLY , CONFIRMATION LETTER S ETC . THE ASSESSEE FILED ONLY BANK STATEMENT, COPIES OF BILLS AND VOUCHERS ETC. IN SUCH CIRCUMSTANCES , THE VARIOUS BENCHES OF THE TRIBUNAL HAVE TAKEN THE CO NSISTENT VIEW WHERE THE ADDITION ON ACCOUNT OF BOGUS PURCHASES WERE UNVERIFIED , THE ADDITION TO THE EXTENT OF 12.5% OF THE TOTAL BOGUS PURCHASES BE MADE TO COVER UP VARIOUS TYPES OF SAVINGS SUCH AS VAT, OCTROI AND LEAKAGE OF REVNEUE WHICH THE ASSESSEE MA D E BY MAKING THE PURCHASES FROM THE GREY MARKET. ACCORDINGLY, WE DIRECT THE AO TO APPLY 12.5% OF BOGUS PURCHASES AS 4 ITA NO. 6552 /MUM/201 6 AGAINST THE ADDITION CONFIRMED BY THE LD.CIT(A) AT 25% OF BOGUS PURCHASES . THE AO IS DIRECTED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH AUG , 2017. S D SD ( MAHAVIR SINGH ) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 28. 8 .2017 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE A PPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI