ITO WARD- 3 (4), )KALYAN V. SUNIL Y. BHIWANDIKAR, MUMBAI

ITA 6862/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0976 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATHI
• Keywords: Bogus purchase
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO. 6862/MUM/2018 ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD-3(4), KALYAN VS. SUNIL Y. BHIWANDIKAR, M/S.M.K.BHIWANDIKAR & CO., 103, HARIOM ARCADE, OPP: KASTURI PLAZA, DOMBIVLI (E) [PAN : ADQPB5207P] (APPELLANT) (RESPONDENT) REVENUE BY : SHRI R.BHOOPATHI, DR ASSESSEE BY : NONE DATE OF HEARING : 1 6 - 12 - 201 9 DATE OF PRONOUNCEMENT : 16 - 12 - 201 9 O R D E R THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-1, THANE, DATED 28-09-2018 FOR THE AY.2009-10. 2. THE NOTICE OF APPEAL WAS SENT TO ASSESSEE FOR TO-DAY I.E., 16-12-2019 THROUGH RPAD ON 20-11-2019 AND THE SAME HAS NOT BEEN RECEIVED BACK UN-SERVED OR OTHERWISE. NONE APPEARED TO REPRESENT THE ASSESSEE. HENCE, THE APPEAL I S TAKEN UP FOR HEARING WITH THE ASSISTANCE OF LD.DR AND THE MATERIAL AVAILABLE ON RECORD. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECOR DS ARE: THE ASSESSEE IS ENGAGED IN MANUFACTURING OF SH EET METALS, FABRICATION WORKS AND HARDWARE TOOLS. ON THE B ASIS ITA NO. 6862/MUM/2018 : 2 : OF INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, THE ASSESSMENT OF ASSESSEE FOR AY.2009-10 WAS RE-OPENED. IN RE-ASSESSMENT PROCEEDIN GS, THE ASSESSING OFFICER (AO) HELD THAT THE ASSESSEE HAS INDU LGED IN OBTAINING BOGUS PURCHASE BILLS FROM THE FOLLOWING HAW ALA DEALERS: NAME OF THE HAWALA DEALER AMOUNT OF BILL RS. SIDDHIVINAYAK STEELS 78,333 GARIMA STEEL TRADERS 5,13,004 SHREE JALARAM ENTERPRISES 2,84,856 NEPTUNE COR. 2,03,840 TOTAL RS. 10,80,033 THE AO MADE ADDITION OF THE ENTIRE AFORESAID ALLEGED B OGUS PURCHASES. AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). 4. THE CIT(A) VIDE IMPUGNED ORDER, SUSTAINED ADDITION TO THE EXTENT OF 25% OF THE ALLEGED BOGUS PURCHASES I.E. , RS.2,70,008/-. AGAINST THE ORDER OF CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. SHRI R.BHOOPATHI, REPRESENTING THE DEPARTMENT, VEHEMENTLY DEFENDED THE ASSESSMENT ORDER. THE LD.DR SUBMITTED THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE GENUINENESS OF THE PURCHASES. THE ASSESSEE FAILED TO PRODUCE DEALERS FROM WHOM THE ASSESSEE ALLEGEDLY MADE PURCHA SES. THE LD.DR PRAYED FOR MODIFYING THE ORDER OF CIT(A) A ND CONFIRMING THE ENTIRE BOGUS PURCHASES AS ADDITION. ITA NO. 6862/MUM/2018 : 3 : 6. THE SUBMISSIONS MADE BY LD.DR HEARD AND THE MATER IAL AVAILABLE ON RECORD PERUSED. THE SALES MADE BY THE ASSESSEE HAVE NOT BEEN DISPUTED BY THE REVENUE. THEREFORE, THE ENTIRE ALLEGED BOGUS PURCHASE CANNOT BE ADDED BACK. WITHOUT PURCHASES, THERE CANNOT BE SALES. IN THE GIVEN FACTS O F THE CASE, IT APPEARS THAT THE ASSESSEE HAS MADE PURCHASES F ROM GREY MARKET AND THEREAFTER, OBTAINED BILLS FROM ALLEG ED HAWALA OPERATORS. THE FAA HAS SUSTAINED ADDITION TO THE EXTENT O F 25% OF THE ALLEGED BOGUS PURCHASES. TAKING INTO CONSIDERATION ENTIRETY OF FACTS, THE ORDER OF CIT(A) IS FAIR AND JUSTIFIED AND HENCE, WARRANTS NO INTERFERENCE. THE IM PUGNED ORDER IS UPHELD AND THE APPEAL OF REVENUE IS DISMISS ED. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY, THE 16 TH DAY OF DECEMBER, 2019 SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER /MUMBAI; /DATED : 16-12-2019 TNMM ITA NO. 6862/MUM/2018 : 4 : / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT 3. # $ ( ) / THE CIT(A), MUMBAI 4. # $ / CIT, MUMBAI 5. '()*+ , #-*+#. , / DR, ITAT, MUMBAI 6. )/01 / GUARD FILE # / BY ORDER, ' //TRUE COPY// /# (DY./ASST. REGISTRAR) #-*+#., / ITAT, MUMBAI