UTTAMCHAND P. JAIN, MUMBAI V. ITO 19(3)(5), MUMBAI

ITA 995/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4548 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Keywords: Bogus purchase; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.995/MUM/2019(A.Y. 2009-10) ITA NO.996/MUM/2019(A.Y. 2010-11) SHRI UTTAMCHAND P. JAIN, 6, MAHESHWARI SOCIETY, PM ROAD, KANKUWADI, VILE PARLE EAST, MUMBAI 400 057. PAN:ACRPJ 0320M ...... APPELLANT VS. INCOME TAX OFFICER , WARD 19(3)(5), MATRU MANDIR, TARDEO , MUMBAI 400 007 ..... RESPOND ENT ITA NO.499/MUM/2019(A.Y. 2010-11) INCOME TAX OFFICER , WARD 19(3)(5), MATRU MANDIR, TARDEO , MUMBAI 400 007 .... APPELLANT VS. SHRI UTTAMCHAND P. JAIN, 6, MAHESHWARI SOCIETY, PM ROAD, KANKUWADI, VILE PARLE EAST, MUMBAI 400 057. PAN:ACRPJ 0320M .... RESPON DENT ASSESSEE BY : SHRI S.L.JAIN REVENUE BY : SHRI AMIT PRATAP SING H DATE OF HEARING : 10/02/2020 DATE OF PRONOUNCEMENT : 14/02/2020 2 ITA NO.995/MUM/2019(A.Y. 2009-10) ITA NO.996/MUM/2019(A.Y. 2010-11) ITA NO.499/MUM/2019(A.Y. 2010-11) ORDER PER VIKAS AWASTHY, JM: ITA NO.995/MUM/2009(A.Y. 2009-10) THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) 53, MUMBAI ( IN SHORT THE CIT(A) ) DATED 15/11/2018 FOR ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE IN THIS APPEAL HAS ASSAILED THE I MPUGNED ORDER BY RAISING FOLLOWING GROUNDS: (1) THE LEARNED INCOME TAX OFFICER, HAS ERRED IN LAW, IN LEVING PENALTY U/S.271(1)(B) OF THE I.T.ACT, 1961 OF RS.10000/- WITHOUT CONSIDER ATION ON THE SUBMISSION MADE BY THE ASSESSEE , WHICH IS UNJUSTIFIED AND ILLEGAL. (2) THE LEARNED INCOME TAX OFFICER, HAS ERRED IN L AW IN INITIATING PENALTY PROCEEDINGS U/S 271(1)(B) FOR CONCEALMENT OF INCOME WHICH IS MOST UNJUSTIFIED AND BAD IN LAW. 3. FROM THE PERUSAL OF THE ASSESSMENT ORDER AND THE ORDER PASSED BY CIT(A) WE FIND THAT IT IS A CASE OF BOGUS PURCHASES . THE ASSESSING OFFICER HAS MADE ADDITION BY ESTIMATING G.P @12.5% ON THE TOTAL ALLEGED BOGUS PURCHASES. THE CIT(A) HAS CONFIRMED THE SAME. FRO M THE IMPUGNED ORDER WE FIND THAT THERE IS NO LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) AS HAS BEEN CHALLE NGED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. THE GROUNDS RAISED IN APPEAL BY THE ASSESSEE ARE INCOHERENT WITH THE ISSUES DISCUSSED IN THE IMPUGNE D ORDER. THE GROUNDS OF APPEAL BY THE ASSESSEE ARE MISCONCEIVED . HENCE, THE APPEAL OF THE ASSESSEE IS DISMISSED. 3 ITA NO.995/MUM/2019(A.Y. 2009-10) ITA NO.996/MUM/2019(A.Y. 2010-11) ITA NO.499/MUM/2019(A.Y. 2010-11) ITA NO. 449&996/MUM/2019(A.Y.2010-11): 4. THESE ARE CROSS APPEALS BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER OF CIT(A) -53, MUMBAI DATED 15/11 /2018. 5. THE APPEAL OF THE ASSESSEE IS TIME BARRED BY 10 DAYS. THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY. SHRI S.L.JAIN APPEARING ON BEHALF OF THE ASSESSEE MADE AN ORAL REQUEST, EXPLAI NING REASONS FOR DELAY IN FILING OF THE APPEAL. THE LD. DEPARTMENTAL REPRESE NTATIVE HAS NOT RAISED ANY SERIOUS OBJECTION TO THE PRAYER OF THE LD.AUTHORIZ ED REPRESENTATIVE OF THE ASSESSEE SEEKING CONDONATION OF DELAY IN FILING O F THE APPEAL. FOR THE REASONS EXPLAINED BY LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE , 10 DAYS DELAY IN FILING OF THE APPEAL IS CONDONED AND THE APPEAL OF THE ASSESSEE IS ADMITTED TO BE HEARD AND DISPOSED OF ON MERITS. 6. THE REVENUE IN APPEAL HAS ASSAILED THE FINDING O F CIT(A) IN RESTRICTING ADDITION ON ACCOUNT OF BOGUS PURCHASES TO 12.5%. T HE ASSESSING OFFICER IN ASSESSMENT ORDER HAS OBSERVED THAT THE ASSESSEE HA S INDULGED IN BOGUS PURCHASES AGGREGATING TO RS.36,48,248/- FROM VARIOU S PARTIES. THE ASSESSING OFFICER ESTIMATED BOGUS PURCHASES TO 25% OF SUCH PU RCHASES AND MADE ADDITION OF RS.9,12,062/-. AGGRIEVED AGAINST THE A SSESSMENT ORDER DATED 14/03/2016 PASSED UNDER SECTION 143(3) R.W.S. 147 O F THE ACT, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) ALLOWED PART RELIEF TO THE ASSESSEE AND RESTRICTED THE ADDITION TO 12.5% OF THE ALLEGED BOGUS PURCHASES. AGAINST RELIEF ALLOWED TO THE ASSESSEE BY THE CIT(A), REVE NUE IS IN APPEAL. 4 ITA NO.995/MUM/2019(A.Y. 2009-10) ITA NO.996/MUM/2019(A.Y. 2010-11) ITA NO.499/MUM/2019(A.Y. 2010-11) 7. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE SUBMITTED THAT THE ASSESSEE HAS FILED CROSS APPEAL IN ITA NO.996/MUM/2 019 ASSAILING ADDITION TO THE EXTENT OF 12.5% CONFIRMED BY CIT(A). 8. BOTH SIDES HEARD. AFTER EXAMINING THE GROUNDS O F APPEAL RAISED IN APPEAL BY THE ASSESSEE, WE FIND THAT THE ASSESSEE HAS CHALLENGED LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. THE GR OUNDS RAISED BY THE ASSESSEE IN APPEAL ARE REPRODUCED HEREIN BELOW: (1) THE LEARNED INCOME TAX OFFICER, HAS ERRED IN LAW, IN LEVING PENALTY U/S.271(1)(B) OF THE I.T.ACT, 1961 OF RS.10000/- WITHOUT CONSIDER ATION ON THE SUBMISSION MADE BY THE ASSESSEE , WHICH IS UNJUSTIFIED AND ILLEGAL. (2) THE LEARNED INCOME TAX OFFICER, HAS ERRED IN L AW IN INITIATING PENALTY PROCEEDINGS U/S 271(1)(B) FOR CONCEALMENT OF INCOME WHICH IS MOST UNJUSTIFIED AND BAD IN LAW. 9. FROM THE PERUSAL OF THE ASSESSMENT ORDER AND THE ORDER PASSED BY CIT(A) WE FIND THAT IT IS A CASE OF BOGUS PURCHASES . THE ASSESSING OFFICER HAS MADE ADDITION BY ESTIMATING BOGUS PURCHASES @25% ON THE TOTAL ALLEGED BOGUS PURCHASES. THE CIT(A) HAS RESTRICTED THE AD DITION TO 12.5%. FROM THE IMPUGNED ORDER WE FIND THAT THERE IS NO LEVY OF PEN ALTY UNDER SECTION 271(1)(B) OF THE ACT, AS HAS BEEN CHALLENGED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. THE GROUNDS RAISED IN APPEAL BY THE ASSE SSEE ARE INCOHERENT WITH THE ISSUES DISCUSSED IN THE IMPUGNED ORDER. THE GROU NDS OF APPEAL BY THE ASSESSEE ARE MISCONCEIVED . HENCE, THE APPEAL OF T HE ASSESSEE IS DISMISSED. 10. IN SO FAR AS THE APPEAL OF THE REVENUE IS CONCE RNED, THE SAME IS AGAINST FINDING OF THE CIT(A) IN RESTRICTING DISALLOWANCE ON ACCOUNT OF BOGUS PURCHASES TO 12.5%. WE FIND THAT THE FIRST APPELLATE AUTHORI TY HAS ESTIMATED GP ON ALLEGED BOGUS PURCHASES IN LINE WITH THE DECISION OF HONBLE GUJARAT HIGH 5 ITA NO.995/MUM/2019(A.Y. 2009-10) ITA NO.996/MUM/2019(A.Y. 2010-11) ITA NO.499/MUM/2019(A.Y. 2010-11) COURT IN THE CASE OF CIT VS. SIMIT P. SHETH, 356 IT R 451. WE FIND NO REASON TO INTERFERE WITH THE FINDING OF CIT(A). APPEAL OF TH E REVENUE IS DEVOID OF ANY MERIT AND HENCE, IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE AND TH E APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER THE HE ARING ON FRIDAY , THE 14 TH DAY OF FEBRUARY, 2020. SD/- SD/- (R.C.SHARMA) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 14/02/2020 VM , SR. PS(O/S) 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. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI