ITO 23(1)(6), MUMBAI V. ANISH KANTILAL JAIN , MUMBAI

ITA 994/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6264 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VARMA LD
• Keywords: Bogus purchase; Peak credit
• Section: 143(3)

Judgement Text

1 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , , BEFORE HONBLE SHRI C.N. PRASAD , JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) 1 . ./ I.T.A. NO. 994 /MUM/20 20 ( / ASSESSMENT YEAR : 2009 - 10 ) ITO 23(1)(6) R. NO. 203, 2 ND FLOOR EARNEST HOUSE, NARIMAN POINT, MUMBAI - 400 021 / VS. ANISH KANTILAL JAIN NIMESH MEDICAL CORPORATION, R. NO.7, BANGLE HOUSE, 2/22, BABU GENU ROAD, MUMBAI - 400 002 ./ ./ PAN/GIR NO . A A APJ - 6238 - M ( / APPELLANT ) : ( / RESPONDENT ) REVENUE BY : MS. SMITA VARMA LD. SR. DR ASSESSEE BY : NONE / DATE OF HEARING : 02 /09 /2021 / DATE OF PRONOUNCEMENT : 02/09/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR AY 20 09 - 10 ARISES OUT OF THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - 29 MUMBAI [CIT(A)] DATED 25/11/2019 IN THE MATTER OF ASSESSMENT FRAMED BY LD. ASSESSING OFFICER (AO) U/S 143(3) R.W.S. 147 ON 23/03/2015. THE LD. CIT(A) HAS GRANTED PARTIAL RELIEF TO THE ASSESSEE ON ACCO UNT OF ALLEGED BOGUS PURCHASES AGAINST WHICH THE REVENUE IS IN FURTHER APPEAL BEFORE US. 2 2. AT THE TIME OF HEARING, NONE APPEARED FOR ASSESSEE . H OWEVER, THE MATERIAL ON RECORD WAS SUFFICIENT FOR DISPOSAL OF THE APPEAL. THE LD. DR PLEADED FOR RESTORATION OF ASSESSMENT AS FRAMED BY LD. AO. THE ASSESSEE BEING RESIDENT INDIVIDUAL IS STATED TO BE ENGAGED IN TRADING UNDER PROPRIETORSHIP CONCERN NAMELY M/S NIMISH PHARMA CHEM. 3. THE CASE WAS REOPENED PURSUANT TO RECEIPT OF CERTAIN INFORMATION FROM SALES TAX DEP ARTMENT, MAHARASHTRA ON THE BASIS OF WHICH IT WAS ALLEGED THAT THE ASSESSEE M ADE SUSPICIOUS PURCHASES OF RS. 16.42 LACS FROM VARIOUS ENTITIES . THOUGH THE ASSESSEE FILED LEDGER EXTRACT AS WELL AS BANK STATEMENTS EVIDENCING PAYMENT THROUGH BANKING CHANNEL, IT FAILED TO PRODUCE ANY OF THE SUPPLIER FOR CONFIRMATION OF ACCOUNT. THE LD. AO WORKED OUT PEAK CREDIT AGAINST THESE PURCHASES FOR RS.12.39 LACS AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE U/S 69C. 4 . THE LD. CIT(A), AFTER CONSIDERING ASSESSEES SUBMIS SIONS, CONCURRED THAT SALES TURNOVER WAS NOT UNDER DOUBT AND THEREFORE, THE PEAK ADDITIONS WERE NOT JUSTIFIED. FINALLY, RELYING UPON THE DECISION OF HONBLE GUJARAT HIGH COURT IN CIT V/S SIMIT P. SHETH (356 ITR 451), THE ESTIMATION WAS MADE @12.5% AGAINST WHICH THE REVENUE IS IN FURTHER APPEAL BEFORE US. 5 . AFTER GOING THROUGH IMPUGNED ORDER, WE FIND THAT LD. CIT(A) HAS CLINCHED THE ISSUE IN THE RIGHT PERSPECTIVE. THE SALE WAS NOT UNDER DOUBT AND THERE COULD BE NO SALE WITHOUT ACTUAL PURCHASE OF MATERIAL KE EPING IN VIEW THE FACT THAT THE ASSESSEE WAS ENGAGED IN TRADING ACTIVITIES. THEREFORE, THE ESTIMATION OF 12.5% WAS QUITE FAIR & REASONABLE. FINDING NO REASON TO INTERFERE IN THE IMPUGNED ORDER, WE DISMISS THE APPEAL. 3 6 . IN THE RESULT, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED ON 02 ND SEPTEMBER , 2021. SD/ - SD/ - ( C. N. PRASAD ) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 02 / 09 /20 21 SR.PS, DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.