ITO 25 (1)(3), MUMBAI V. SUJIT OJHA , MUMBAI

ITA 7182/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4512 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 13-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI R. C. SHARMA, ACCOUNTANT MEMBER & SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 7182 /MUM/ 2018 : A.Y : 2011 - 12 INCOME TAX OFFICER 25(1)(3), MUMBAI VS. SHRI SUJIT OJHA A - 703, PR AJAKTA CHS, KONDIVITA VILLAGE J.B.NAGAR, ANDHERI - EAST MUMBAI 400 059 PAN NO: AAEP07127Q REVENUE BY : SHRI SATISHCHANDRA RAJORE ASSESSEE BY : NONE DATE OF HEARING : 25/02/2020 DATE OF PRONOUNCEMENT : 26 /02/2020 O R D E R PER R.C. SHARMA , ACC OUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - 53, MUMBAI DATED 22/10/2018 FOR A.Y.2011 - 12 IN THE MATTER OF ORDER PASSED U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961. 2. NOBODY APPEARED ON BEHALF OF THE ASSESSEE I NSPITE OF ISSUANCE OF SERVICE OF NOTICE. HOWEVER, NO ADJOURNMENT PETITION WAS FILED BY THE ASSESSEE. ACCORDINGLY, BENCH DECIDED TO DISPOSE THE APPEAL AFTER HEARING THE LD. DR AND CONSIDERING THE MATERIAL PLACED ON RECORD. 3. WE HAVE GONE THROUGH THE ORDE RS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF ELECTRICAL WORKS CONTRACT. AO GOT INFORMATION FROM SALES TAX DEPARTMENT REGARDING ITA NO. 7182/MUM/2 018 SHRI SUJIT OJHA 2 ASSESSEE TAKING ACCOMMODATION BILL WITH REGARD TO THE PURCHASES. ACCORDINGLY, AS SESSMENT WAS REOPENED AND THEREAFTER , AO ADDED ENTIRE SUCH PURCHASES IN ASSESSEES INCOME. 4. BY THE IMPUGNED ORDER CIT(A) RESTRICTED ADDITION TO THE EXTENT OF 25% AFTER HAVING THE FOLLOWING OBSERVATION: - 5.6. I AM GUIDED BY THE RATIO OF DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS SIMIT P. SHETH PRONOUNCED ON 16.1.2013 IN TAX APPEAL NO.5531 OF 2012 WHEREIN THE HON'BLE COURT HAVE HELD THAT WHEN THE TOTAL SALE IS ACCEPTED BY THE AO, THEN THE ENTIRE PURCHASES CANNOT BE ADDED TO THE INCO ME OF THE APPELLANT. THE HON'BLE COURT HAVE, THEREFORE, HELD THAT FAIR PROFIT RATIO WOULD BE NEEDED TO BE ADDED BACK TO THE INCOME OF THE ASSESSEE. 5.7. EVEN IF MATERIALS HAVE BEEN PURCHASED, THEY ARE NOT PURCHASED FROM THESE PARTIES AND MAY BE IN CASH FR OM MI - DISCLOSED PARTIES. BY PURCHASING FROM THE GREY MARKET, THE APPELLANT WOULD HAVE BENEFITTED BY THE SAVINGS OF TAXES. THIS IS NOT A CASE OF TRADING WHERE ONE TO ONE CORRESPONDENCE BETWEEN PURCHASE AND SALES CAN BE SHOWN. THEREFORE, IN FACT AND CIRCUMST ANCES OF THE CASE, IN THIS PARTICULAR CASE, IT IS CONSIDERED MOST APPROPRIATE TO ADOPT 25% PROFIT WHICH CAN TAKE CARE OF THE ROTATION OF CAPITAL UTILISED FOR SUCH TRANSACTION. HENCE IN THE LIGHT OF FINDING OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF C IT VS. SIMIT P. SHETH, 25% PROFIT IS FOUND TO BE APPROPRIATE FOR ASCERTAINMENT OF TAXABLE INCOME RELATED TO SUCH TRANSACTION. IT IS NOTED FROM TAR THAT THOUGH THE APPELLANT IS A TRADER, NO STOCK RECORDS ARE MAINTAINED/ALSO, ON IDENTICAL FACTS FOR AY 2010 - 1 1 IN THE CASE OF THE APPELLANT, THE SAME AO IN SIMILAR CIRCUMSTANCES, HAS MADE A DISALLOWANCE @ 25% OF THE PURCHASES AND THE ADDITION MADE BY THE AO WAS UPHELD. IN AY 2011 - 12, NO DISTINGUISHABLE FACTS ARE RECORDED FOR MAKING DISALLOWANCES @ 100% OF THE IMP UGNED PURCHASES. HENCE, FOR AY 2011 - 12, THE DISALLOWANCE IS UPHELD TO THE EXTENT OF 25%. / THE ASSESSEE GETS RELIEF OF RS.5,59,694/ - . THUS GROUND OF APPEAL NO. 2 IS PARTLY ALLOWED. 5. IT IS CLEAR FROM THE ORDER CIT(A) THAT HE HAS DEALT WITH THE ISSUE TH READBARE AND AFTER APPLYING VARIOUS JUDICIAL PRONOUNCEMENTS TO THE FACTS OF THE CASE CONFIRMED ADDITION TO THE EXTENT OF 25% OF ALLEGED ITA NO. 7182/MUM/2 018 SHRI SUJIT OJHA 3 BOGUS PURCHASES SO AS TO FILL THE GAP OF LOSS OF REVENUE IF ANY. THE DETAILED FINDING SO RECORDED BY CIT(A) AT PARA 5.1 TO 5.7 HAS NOT BEEN CONTROVERTED BY THE LD. DR BY BRINGING ANY POSITIVE MATERIAL ON RECORD. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDINGS OF CIT(A) FOR UPHOLDING ADDITION TO THE EXTENT OF 25% OF ALLEGED BOGUS PURCHASES. 6. IN THE RES ULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 / 02 /20 20 SD/ - (PAWAN SINGH) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 26 / 02 /20 20 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//