ITO 28 (1)(1), MUMBAI V. SHRI AMARNATH BANAMALI GHOSH, NAVI MUMBAI

ITA 7487/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3849 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Bogus purchase
• Section: 133(6)

Judgement Text

, , ! IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER . 7486 &7487 / / 2019 (%. . 2009-10 & 2010-11 ) ITA NO.7486& 7487/MUM/2019(A.Y 2009-10 & 2010-11) ITO-28(1)(1), ROOM NO.329, 3 RD FLOOR, TOWER NO.6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI 400 703 ...... ' / APPELLANT % VS. SHRI AMARNATH BANAMALI GHOSH, A-101, AJANTA EXPRESS, SECTOR -19, AIROLI, NAVI MUMBAI - 400708 PAN: AEJPG-0872-R ..... ()/ RESPONDENT '*/ APPELLANT BY : SHRI SANJAY J. SETHI ()*/ RESPONDENT BY : NONE %+) / DATE OF HEARING : 22/07/2021 ,-. +) / DATE OF PRONOUNCEMENT : 04/10/2021 / ORDER THESE TWO APPEALS BY THE REVENUE ARE AGAINST THE O RDER OF COMMISSIONER OF INCOME TAX (APPEALS)-26, MUMBAI [ IN SHORT THE CIT (A)] FOR ASSESSMENT YEAR 2009-10 AND 2010-11, RESPECTIVELY. BOTH THE IMPUGN ED ORDER ARE OF EVEN DATE I.E. 16/09/2019. 2 ITA NO.7486& 7487/MUM/2019(A.Y 2009-10 & 2010-11) 2. SINCE, THE FACTS AND GROUNDS OF APPEAL IN BOTH T HESE APPEALS ARE IDENTICAL, THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DECIDED BY THIS COMMON ORDER. ITA NO.7486/MUM/2019, A.Y. 2009-10: 3. SHRI SANJAY J. SETHI REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ASSESSEE DURING THE PERIOD RELEVANT TO THE ASSESSME NT YEAR 2009-10 HAD OBTAINED BOGUS PURCHASE BILLS FROM REVATHI STEEL T RADERS FOR RS.9,45,204/- AND LAKSHMI TRADING COMPANY RS.16,84,047/-. DURING A SSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO DISCHARGE ITS ONUS IN PROVIN G GENUINENESS OF THE AFORESAID DEALERS AND PURCHASES MADE FROM THEM. THE ASSESSING OFFICER IN ORDER TO VERIFY GENUINENESS OF THE TRANSACTIONS ISSUED NOTICE UNDER SECTION 133(6) OF THE INCOME TAX ACT,1961 ( IN SHORT 'THE A CT') TO THE VENDORS, HOWEVER, THE SAME WERE RETURNED BACK UNSERVED BY THE POSTAL AUTHORITIES. THE ASSESSING OFFICER IN A VERY REASONED AND FAIR MANN ER ESTIMATED G.P @ 32.71% ON NON-GENUINE PURCHASES AND MADE ADDITION O F RS.8,60,028/-. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE CIT (A). THE CIT(A) GRANTED RELIEF TO THE ASSESSEE BY RESTRICTING G.P ON BOGUS PURCHASES TO 12.5%. AGAINST RELIEF GRANTED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD.DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE C IT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAS NEITHER P RODUCED THE DEALERS NOR ANY CONFIRMATION WAS FILED FROM THE SAID DEALERS. NO D OCUMENTS WERE PLACED ON RECORD BY THE ASSESSEE TO PROVE TRAIL OF GOODS. HE NCE, PURCHASES MADE FROM HAWALA OPERATORS REMAINED UNPROVED. 4. SUBMISSIONS MADE BY LD.DEPARTMENTAL REPRESENTATI VE HEARD, ORDERS OF AUTHORITIES BELOW EXAMINED. UNDISPUTEDLY, THE ASSE SSEE FAILED TO DISCHARGE HIS 3 ITA NO.7486& 7487/MUM/2019(A.Y 2009-10 & 2010-11) ONUS IN PROVING AUTHENTICITY OF THE DEALERS AND THE PURCHASES MADE FROM THEM. AT THE SAME TIME IT IS OBSERVED THAT THE ASS ESSING OFFICER HAS NOT DISPUTED THE SALES TURNOVER DECLARED BY THE ASSESSE E. IT IS ONLY SUPPRESSED PROFIT MARGIN EMBEDDED IN SUCH LIKE TRANSACTIONS TH AT CAN BE BROUGHT TO TAX. THE ESTIMATION OF G.P @32.71% BY THE ASSESSING OFFI CER IS VERY MUCH ON THE HIGHER SIDE. THE CIT(A) HAS GRANTED PART RELIEF B Y RESTRICTING SUPPRESSED PROFIT MARGIN ON UNPROVED PURCHASES TO 12.5%. I FIND THE ORDER OF CIT(A) FAIR AND REASONABLE, HENCE, WARRANTS NO INTERFERENCE. IN TH E RESULT, APPEAL BY THE REVENUE IS DISMISSED BEING DEVOID OF ANY MERIT. ITA NO.7487/MUM/2019, A.Y. 2010-11: 5. THE LD.DEPARTMENTAL REPRESENTATIVE SUBMITTED THA T THE FACTS IN ASSESSMENT YEAR 2010-11 ARE SIMILAR TO THE FACTS I N ASSESSMENT YEAR 2009-10 EXCEPT THAT THE ASSESSING OFFICER IN ASSESSMENT PR OCEEDINGS HAS ESTIMATED G.P ON BOGUS PURCHASES AT 25%. THE PARTIES FROM WHO M THE ASSESSEE HAD OBTAINED BOGUS BILLS ARE THE SAME IN BOTH THE ASSES SMENT YEARS. NO DOCUMENTARY EVIDENCE WERE FURNISHED BY THE ASSESSEE TO PROVE TRAIL OF GOODS. THE ASSESSEE COULD NEITHER PRODUCE THE DEALERS NOR ANY CONFIRMATIONS FROM THE SAID DEALERS WERE FILED. 6. SINCE, FACTS INVOLVED IN THE PRESENT APPEAL ARE IDENTICAL TO THE FACTS IN ASSESSMENT YEAR 2009-10, EXCEPT FOR THE AMOUNT INVO LVED AND THE ESTIMATION OF G.P ON BOGUS PURCHASES BY THE ASSESSING OFFICER. THE CIT(A) IN IMPUGNED ORDER HAS RESTRICTED DISALLOWANCE ON BOGUS PURCHA SES TO 12.5%. FOR PARITY OF REASONS GIVEN WHILE ADJUDICATING THE APPEAL OF REVE NUE FOR ASSESSMENT YEAR 2009-10, THE PRESENT APPEAL BY THE REVENUE IS DISM ISSED. 4 ITA NO.7486& 7487/MUM/2019(A.Y 2009-10 & 2010-11) 7. TO SUM UP, BOTH APPEALS BY THE REVENUE ARE DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY THE 04 TH DAY OF OCTOBER, 2021 SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER / MUMBAI, 0%/ DATED 04/10/2021 VM , SR. PS (O/S) COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT , 2. () / THE RESPONDENT. 3. 1) ( )/ THE CIT(A)- 4. 1) CIT 5. 23 ()% , . . . , / DR, ITAT, MUMBAI 6. 34567 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI