ACIT 32(2), MUMBAI V. OM GAGANGIRI DEVELOPMENT CORPORATION, MUMBAI

ITA 6618/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9832 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Assessee Lawyers: SANDEEP D GHELANILD
• Keywords: Bogus purchase
• Section: 69C; 143(3)

Judgement Text

ITA NO 6618/MUM/2016 OM GAGANGIRI DEVELOPMENT CORPORATION ASSESSMENT YEAR 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 6618/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) ASSISTANT COMMISSIONER OF INCOME TAX-32(2) ROOM NO.308, 3 RD FLOOR C-11 PRATYAKSHKAR BHAVAN BKC, BANDRA EAST MUMBAI 400 051 / VS. OM GAGANGIRI DEVELOPMENT CORPORATION 102/B, ATLANTA BUILDING, MITHAGAR ROAD DAHISAR(W) MUMBAI -400 068 ! ./ ./PAN/GIR NO. AAAFO-1526-B ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : SANDEEP. D. GHELANI,LD. AR REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 16/08/2017 / DATE OF PRONOUNCEMENT : 23/08/2017 ITA NO 6618/MUM/2016 OM GAGANGIRI DEVELOPMENT CORPORATION ASSESSMENT YEAR 2012-13 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 2012- 13 ASSAILS THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-44 [CIT(A)], MUMBAI DATED 26/09/2016 QUA DELETION OF CERTAIN BOGUS PURCHASES FOR RS.1,03,17,277/-. 2.1 BRIEFLY STATED THE ASSESSEE BEING RESIDENT FIRM ENGAGED AS BUILDERS & DEVELOPERS WAS ASSESSED U/S 143(3) FOR IMPUGNED AY ON 23/03/20 15 AT RS.4,57,79,240/- AFTER ADDITION OF RS.1,03,17,27 7/- U/S 69C AGAINST CERTAIN BOGUS PURCHASES AS AGAINST RETURNED INCOME OF RS.3,54,61,970/- E-FILED BY THE ASSESSEE ON 26/09/2012. 2.2 DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THA T THE ASSESSEE MADE PURCHASES OF RS.1,03,17,277/- FROM 8 PARTIES. THESE PARTIES, AS PER THE WEBSITE OF SALES TAX DEPARTMENT, MAHARASHTRA, WERE LISTED AS SUSPICIOUS DEALERS INDULGING IN ISSUANCE OF BOGUS PURCHASES. THE SAME WAS CONFRONTED TO THE ASSESSEE WHO PRODUCED LEDGER EXTRACTS, BANK STATEMENTS, DELIVERY CHALLANS ETC. TO SUBSTANTIATE THE PURCHASES. HOWEVER, NOT CONVINCED, LD. AO TREATED THE SAME AS NON-GENUINE PURCHASES AND ADDED THE SAME TO THE INCOME OF THE A SSESSEE U/S 69C. 2.3 AGGRIEVED, THE ASSESSEE CONTESTED THE SAME SUCC ESSFULLY BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 26/09/2016 WHE RE THE ADDITION WAS DELETED BY LD. CIT(A) BY PLACING RELIANCE ON TH E DECISION OF THIS ITA NO 6618/MUM/2016 OM GAGANGIRI DEVELOPMENT CORPORATION ASSESSMENT YEAR 2012-13 3 TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2011-12. AGG RIEVED, THE REVENUE IS IN APPEAL BEFORE US. 3. THE LD. DEPARTMENTAL REPRESENTATIVE [DR] PLACED RELIANCE ON THE ORDER OF LD. AO AND CONTENDED THAT THESE DEALERS, B EFORE SALES TAX AUTHORITIES, ADMITTED TO HAVE INDULGED IN BOGUS BILLING AND THEREFORE, THE ADDITION WAS JUSTIFIED. PER CONTRA, LD. REPRESENTATIVE FOR ASSESSEE [AR] PLACED RELIANCE ON THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2011-12 AND CONTENDED THAT THE ADDITION COUL D NOT BE MADE MERELY BY RELYING UPON WEBSITE INFORMATION PARTICUL ARLY WHEN NO INDEPENDENT INVESTIGATION WAS DONE BY THE LD. AO. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE PRODUCED PURCHASE DOCUMENTS ALONG WITH COP IES OF DELIVERY CHALLANS AND BANK STATEMENTS. THE LD. AO, PRIMA FACIE, WITHOUT MAKING ANY INDEPENDENT INQUIRIES OR WITHOUT CALLING FOR AN Y CONFIRMATIONS ETC. FROM THE ALLEGED BOGUS SUPPLIERS, REJECTED THE SAME STRAIGHTWAY AND MADE THE ADDITIONS MERELY BY PLACING RELIANCE ON TH E WEBSITE INFORMATION, WHICH, IN OUR OPINION, WAS NOT JUSTIFI ED. IT IS SETTLED LAW THAT ADDITIONS COULD NOT BE MADE MERELY ON THE BASIS OF SUSPICION, CONJECTURES OR SURMISES. THE LD. AO FAILED TO BRING ON RECORD ANY COGENT MATERIAL TO ESTABLISH THE FACT THAT THE PURCHASES W ERE NOT GENUINE AND NO INQUIRIES OR EFFORTS, WHATSOEVER OF ANY NATURE, WERE MADE BY LD. AO TO SUBSTANTIATE HIS STAND. FURTHER, THE ASSESSEE IS BUILDER & DEVELOPER AND THIS ACTIVITY COULD NOT BE CARRIED OUT WITHOUT CONSUMPTION OF MATERIAL. THE TURNOVER ACHIEVED BY THE ASSESSEE WAS NOT DISPU TED AND BOOKS OF ITA NO 6618/MUM/2016 OM GAGANGIRI DEVELOPMENT CORPORATION ASSESSMENT YEAR 2012-13 4 ACCOUNTS WERE NOT REJECTED AND THEREFORE, THE ADDIT IONS WERE NOT JUSTIFIED. OUR VIEW IS FURTHER FORTIFIED BY THE DEC ISION OF THIS TRIBUNAL RENDERED IN ASSESSEES OWN CASE FOR AY 2011-12 VIDE ITA NO. 5687/MUM/2014 ORDER DATED 30/06/2016, A COPY OF WHI CH HAS BEEN PLACED BEFORE US. RESPECTFULLY FOLLOWING THE SAME, THE STAND OF LD. CIT(A), BEING FAIR & LOGICAL ONE, IS CONFIRMED. 5. RESULTANTLY, THE REVENUES APPEAL STANDS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD AUGUST, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 23. 08.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI