ASST CIT 31 (2), MUMBAI V. MAHENDRA H SHAH, MUMBAI

ITA 7551/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1812 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 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: 2010-2011
• Appeal Filed On: 09-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIDD ARAMAP P A
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 7551 /MUM/2019 ASSESSMENT Y EAR: 2010 - 11 ASST. COMMISSIONER OF INCOME TAX 31 (2), ROOM NO. 616, 6 TH FLOOR, KAUTILYA BHAVAN, BKC, BANDRA (E), MUMBAI - 400051 VS. MAHENDRA H. SHAH, C/O PERFECT ENGG. CORPN., 101, BHAGYAUDAY SOC., SRINAGAR COLONY ROAD, M.G. ROAD, GOREGAON (WEST), MUMBAI - 400062 PAN: AAFPS2460P (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHIDDARAM A P P A (DR) ASSESSEE BY : NONE DATE OF HEARING : 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 30.09 .2019 O F LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) - 4 2 , MUMBAI FOR THE A SSESSMENT YEAR 2010 - 11 . 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE APPEARED FOR THE ASSESSEE . HOWEVER, THE ASSESSEE HAS FILED LETTER DATED 17.05.2021 SEEKING ADJOURNMEN T. CONSIDERING THE NATURE OF DISPUTE AND THE FACT THAT THE APPEAL HAS BEEN FILED BY THE RE VENUE. I AM INCLINED TO REJECT ASSESSEES REQUEST FOR ADJOURNMENT AND PROCEED TO DISPOSE OF THE APPEAL EX PARTE QUA TH E ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTA L REPRESENTATIVE AND BASED ON MATERIALS ON RECORD. 2 ITA NO. 7551 / MUM/2019 ASSESSMENT YEAR: 20 10 - 1 1 3. THE DISPUTE IN THE PRESE NT APPEAL IS CONFINED TO PARTIAL RELIEF GRANTED BY LEARNED COMMISSIONER (APPEALS) IN THE MATTER OF DISALLOWANCE MADE BECAUSE OF ALLEGED NON - GENUINE PURCHASES. 4 . BRIEFLY THE F ACTS ARE, THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION THROUGH HIS PROPRIETARY CONCERN M/S PERFECT ENGINEERING CORPORATION. 5 . FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 02.10.2010 DECLARING TOTAL INCOME OF RS. 23,77,850/ - . IN COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER (AO) WANTED TO VERIFY CERTAIN PURCHASES SHOWN BY THE ASSESSEE , SINCE , AS PER INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA , SA LES WOR TH RS. 19,98,088/ - SHOWN BY THE ASSESSEE WERE SUSPECTED TO BE NON GENUINE. IN COURSE OF ASSESSMENT PROCEEDINGS, THE AO CALLED UPON THE ASSESSEE TO FURNISH SUPPORTING EVIDENCES TO PROVE THE GENUINENESS OF THE PURCHASES AND ALSO TO PRODUCE CONCERNED P ARTIES FOR EXAMINATION. AS OBSERVED BY TH E AO, THE ASSESSEE COULD NEITHER PRODUCE THE CONCERNED PARTIES NOR WAS ABLE TO FURNISH DELIVERY CHALLAN AND STOCK REGISTER TO SHOW MOVEMENT AND DELIVERY GOODS. BASED ON ABOVE, THE AO ULTIMATELY CONCLUDED THAT THE PU RCHASES ARE NON - GENUINE AND ACCORDINGLY DISALLOWED AN AMOUNT OF RS. 19,98,088/ - . ASSESSEE CONTESTED THE AFORE SAID DISALLOWANCE BEFORE LEARNED COMMISSIONER (APPEALS). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) RESTRICTED THE DISALLOWANCE TO 12.5% OF THE ALLEGED NON - GENUINE PURCHASES. 6 . I HAVE C ONSIDERED THE SUBMISSIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. THOUGH, IT MAY BE A FACT THA T THE ASSESSEE WAS UNABLE TO CONCLUSIVELY PROVE THE SOURCE OF THE DISPUTED PURCHASES, HOWEVER, IT IS EQUALLY TRUE THAT THE SALES E FFECTED BY THE ASSESSEE HAVE NOT BEEN DOUBTED. IN SUCH SCENARIO, AS PER SETTLED LEGAL PRINCIPLE , ONLY 3 ITA NO. 7551 / MUM/2019 ASSESSMENT YEAR: 20 10 - 1 1 THE PROFIT ELEMENT EMBED DED IN THE ALLEGED NON GENUINE PURCHASES CAN BE DISALLOWED. THAT BEING THE CASE , I FIND NO INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN RESTRICTING THE DISALLOWANCE TO 12.5% OF THE ALLEGED NON GENUINE PURCHASES , AS , IT IS IN CONFORMITY WI TH THE SETTLED LEGAL PRINCIPLES. GROUNDS ARE DISMISSED. 7 . 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 / 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