ITO ,WARD- 3(4), KALYAN V. SURESH G. CHAVAN, MUMBAI

ITA 6867/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1152 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• 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. A.Y. APPELLANT RESPONDENT 6866/MUM/18 2010-11 THE INCOME TAX OFFICER, WARD-3(4), KALYAN SHRI SURESH G.CHAVAN, 7, KHUBCHAND MANSION, 2 ND FLOOR, ROOM NO.6, TAKWADI, KALBADEVI ROAD, MUMBAI [PAN: AAJPC8825C] 6867/MUM/18 2011-12 RE VENUE BY : SHRI R.BHOOPATHI, DR ASSESSEE BY : NONE DATE OF HEARING : 1 6 - 12 - 201 9 DATE OF PRONOUNCEMENT : 17 - 12 - 201 9 O R D E R THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)- 1, THANE, DATED 25-09-2018, COMMON FOR THE AYS.2010-11 & 2011-12. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECOR DS ARE: THE ASSESSEE IS A DEALER IN CHEMICALS. ON THE B ASIS OF THE INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, GOVERN MENT OF MAHARASHTRA, THE ASSESSMENTS OF ASSESSEE FOR THE AYS.2010-11 & 2011-12 WERE RE-OPENED. IN THE RE-ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) OBSERVED THAT THE ASSESSEE HAS INDULGED IN OBTAINING BO GUS PURCHASE BILLS FROM CERTAIN HAWALA DEALERS AND THUS M ADE ADDITION OF RS.10,03,260/- IN AY.2010-11 AND RS.17,8 9,440/- IN AY.2011-12. ITA NOS. 6866 & 6867/MUM/2018 : 2 : AGGRIEVED AGAINST THE ASSESSMENT ORDER FOR THE RESPECTIVE ASSESSMENT YEARS, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). 3. THE CIT(A) VIDE IMPUGNED ORDER COMMON FOR BOTH TH E IMPUGNED ASSESSMENT YEARS, RESTRICTED THE ADDITION TO 25% OF THE ALLEGED BOGUS PURCHASES I.E., RS.2,50,815/- IN A Y.2010- 11. IN AY.2011-12, THE AO RESTRICTED THE ADDITION TO DI FFERENCE IN GP RATE I.E., GP DECLARED BY THE ASSESSEE IN IMPUG NED ASSESSMENT YEAR AND THE GP RATE IN THE SUCCEEDING ASSESSMENT YEAR. THUS, THE CIT(A) MADE ADDITION OF RS.6,36,644/-. AGAINST THE ORDER OF CIT(A), THE REVENUE IS IN APPEAL FOR BOTH THE ASSESSMENT YEARS. THE ASSESSEE HAS ACCEPTED THE ADDITIONS CONFIRMED BY THE FAA. 4. 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 ALSO FAIL ED TO FURNISH COPIES OF TRANSPORT AND OCTROI BILLS, THUS, THE ASSESSEE COULD NOT ESTABLISH TRIAL OF GOODS ORIGINATING FROM SUP PLIERS TO THE GODOWN OF THE ASSESSEE. THE LD.DR PRAYED FOR MODI FYING THE ORDER OF CIT(A) AND CONFIRMING THE ENTIRE BOGUS P URCHASES AS ADDITION. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE. ITA NO.6866/MUM/2018 (AY.2010-11): 6. THE SUBMISSIONS MADE BY THE LD.DR HEARD AND THE ORDERS OF THE AUTHORITIES BELOW PERUSED. THE SALES MAD E BY ITA NOS. 6866 & 6867/MUM/2018 : 3 : 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 OF THE CASE, IT APPEARS THAT THE ASSESSEE HAS MADE PURCHASES FROM GREY MARKET AND THEREAFTER, OBTAINED BILLS FROM ALLEGED HAWALA OPERATORS. THE FAA HAS RESTRICTED THE ADDITION TO THE EXTENT OF 25% OF THE BOGUS PURCHASES. I AM OF CONSIDERED VIEW THAT THE ORDER OF CIT(A) IS FAIR AND REASONABLE, HENCE NO INTERFERENCE IS WARRANTED. THE IMPUGNED ORDER IS UPHELD AND THE APPEAL BY REVENUE I S DISMISSED. ITA NO.6867/MUM/2018 (AY.2011-12): 7. THE FACTS IN AY.2011-12 ARE SIMILAR TO AY.2010-11. THE CIT(A) HAS RESTRICTED THE ADDITION TO DIFFERENCE IN GP RATE. THE SAME HAS BEEN ACCEPTED BY THE ASSESSEE. THE FIND INGS GIVEN FOR REJECTING DEPARTMENTS APPEAL FOR AY.2010-11 WOULD MUTATIS MUTANDIS APPLY TO ASSESSMENT YEAR UNDER APPEAL. ACCORDINGLY, THIS APPEAL OF REVENUE IS ALSO DISMISSE D. 8. IN THE RESULT, THE APPEALS OF REVENUE FOR BOTH THE ASSESSMENT YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY, THE 17 TH DAY OF DECEMBER, 2019 SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER /MUMBAI; /DATED : 17-12-2019 TNMM ITA NOS. 6866 & 6867/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