ITO 20 (3)92), MUMBAI V. SAHABULLAH M S KHAN, MUMBAI

ITA 6902/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1817 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIDDARAMPPA
• Keywords: Corroborative evidences
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI SAKTIJIT DEY (JM) ITA NO. 6902 /MUM/2019 ASSESSMENT Y EAR: 2009 - 10 INCOME TAX OFFICER 20(3)(2), ROOM NO. 612, 6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL , MUMBAI - 400012 VS. MR. SAHABULLAH M.S. KHAN, PLOT NO. 218, KOLSA BUNDER, DARUKHANA, MUMBAI - 400010 PAN: AMBPK5209N (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHIDDARAMPPA (DR) ASSESSEE BY : NONE DATE OF HEA RING : 24 /05 /202 1 DATE OF PRONOUNCEMENT: 25 / 0 6 /202 1 O R D E R THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 28 .08.2019 OF LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) - 32 , MUMBAI FOR THE A SSESSMENT YEAR 2009 - 10 . 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE . HOWEVER, C ONSIDERING THE NATURE OF DISPUTE, I PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND BASED ON MATERIAL S ON RECORD. 3. THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO PARTIAL RELIEF GRANTED BY THE LEARNED COMMISSIONER (APPEALS) IN THE MATTER OF DISALLOWANCE MADE BECAUSE OF ALLEGED NON - GENUINE PURCHASES. 4 . BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF TRADING IN IRON AND STEEL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 30.09.2009 DECLARING TOTAL INCOME AT RS. 2,27,994/ - . SUBSEQUENTLY, THE ASSESSING OFFICER (AO) RECEIVED INFORMATION 2 ITA NO. 6902 / MUM/2019 ASSESSMENT YEAR: 20 09 - 1 0 FROM DGIT (INV.), MUMBAI THAT PURCHASES WORTH RS. 1,17,51,389/ - CLAIM ED TO HAVE BEEN MADE DURING THE YEAR ARE NON - GENUINE AS THE CONCERNED SE LLING DEALERS ARE PROVIDING ACCOMMODATION BILLS ONLY . BASED ON SUCH INF ORMATION, THE AO REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. IN COURSE OF ASSESSMENT PROCEEDINGS, THE AO CALLED UPON THE ASSESSEE TO FURNISH SUPPORTING EVIDENCE TO PROVE THE PURCHASES . A LLEGING THAT THE ASSESSEE COULD NOT FURNISH SUPPORTING EVIDE NCE TO PROVE THE SOU RCE OF PURCHASES, T HE AO DISALLOWED RS. 1,46,68,924/ - , BEING 12.5% OF THE ALLEGED NON GENUINE PURCHASES. THE ASSESSEE CONTESTED THE AFORE SAID DISALLOWANCE BEFORE LEARNED COMMISSIONER (APPEALS) . PARTLY ACCEPTING ASSESSEES CONTENTION LEA RNED COMMISSIONER (APPEALS) RESTRICTED THE DISALLOWANCE TO 5% OF THE ALLEGED NON - GENUINE PURCHASES. 5 . I HAVE CON SIDERED THE SUBMISSIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIALS ON RECOR D. THE DISPUTE BEFORE ME IS CONFINED ONLY TO THE PROFIT ELEMENT WHICH CAN BE CONSIDERED FOR DISALLOWANCE . W HILE THE AO HAS ESTIMATED THE PROFIT ELEMENT EMBEDDED IN THE ALLEGED NON GENUINE PURCHASES AT 12.5%, LEARNED COMMISSIONER (APPEALS) REDUCED IT TO 5% BY TAKING NOTE OF THE APPLICABLE VAT RATE OF 4% ON THE GOODS PURCHASE D BY THE ASSESSEE. HAVING CONSIDERED THE MATERIAL FACTS AS WELL AS THE NATURE OF BUSINESS OF THE ASSE SSEE, I FULLY AGREE WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN RESTRICTING THE DISALLOWANCE TO 5%. GROUNDS RAISED ARE D ISMISSED. 6 . IN THE RESULT, APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE , 2021 . SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER MUMBAI ; DATED: 25 / 06 /202 1 ALINDRA, PS 3 ITA NO. 6902 / MUM/2019 ASSESSMENT YEAR: 20 09 - 1 0 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI