INCOME TAX OFFICER-9(2)(4), MUMBAI V. M/S. EVERGREEN WATER TECHNOLOGIES PVT. LTD, MUMBAI

MA 105/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3692 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-06-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 12-05-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “E” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SANDEEP SINGH KARHAIL (JUDICIAL MEMBER) MA No. 105/MUM/2022 (ITA No. 5483/MUM/2019) Assessment Year: 2009-10 Income Tax Officer-9(2)(1), Room No. 601A, 6 th floor, Aayakar Bhavan, M.K. Road, Mumbai-400020. Vs. M/s Evergreen Water Technologies Pvt. Ltd., A/303 Rajkamal CHS, Verova Link Road, Andheri (W), Mumbai-400061. PAN No. AAACE 6110 E Appellant Respondent Revenue by : Ms. Vranda U. Matkari, DR Assessee by : Mr. S.C. Agrawal, AR Date of Hearing : 01/07/2022 Date of pronouncement : 01/07/2022 ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the Revenue is seeking recall of the order dated 02.07.2021 passed by the Tribunal in ITA No. 5483/M/2019 for assessment 2009-10. 2. Before us, the Ld. DR submitted that appeal was filed by the Revenue against the proceedings u/s 271(1)(c) of the Act whereas the Tribunal has decided the issue treating as appeal against quantum addition and therefore order has been passed by the Tribunal grounds raised and there 3. The Ld. Counsel of the assessee could not controvert this facts raised by the Ld. DR. 4. We have head rival submissions of the parties on the issue dispute and perused the relevant material on record. We find that the Ld. First Appellate Authority i.e. Ld. CIT(A) has passed order on 31.05.2019 allowing appeal of the assessee and against which the Revenue preferred appeal before the Tribunal which has been adjudicated by the Tribunal on 02.07.2021 decision of the Tribunal is reproduced as under: M/s Evergreen Water Technologies Pvt. MA No. 105/M/2022 Before us, the Ld. DR submitted that appeal was filed by the against the order passed by the Ld. CIT(A) in penalty proceedings u/s 271(1)(c) of the Act whereas the Tribunal has decided the issue treating as appeal against quantum addition and has been passed by the Tribunal grounds raised and therefore need to be recalled. The Ld. Counsel of the assessee could not controvert this facts We have head rival submissions of the parties on the issue dispute and perused the relevant material on record. We find that irst Appellate Authority i.e. Ld. CIT(A) has passed order on 31.05.2019 allowing appeal of the assessee and against which the Revenue preferred appeal before the Tribunal which has been adjudicated by the Tribunal on 02.07.2021. The relevant cision of the Tribunal is reproduced as under: M/s Evergreen Water Technologies Pvt. Ltd. MA No. 105/M/2022 2 Before us, the Ld. DR submitted that appeal was filed by the order passed by the Ld. CIT(A) in penalty proceedings u/s 271(1)(c) of the Act whereas the Tribunal has decided the issue treating as appeal against quantum addition and has been passed by the Tribunal ignoring the The Ld. Counsel of the assessee could not controvert this facts We have head rival submissions of the parties on the issue-in- dispute and perused the relevant material on record. We find that irst Appellate Authority i.e. Ld. CIT(A) has passed order on 31.05.2019 allowing appeal of the assessee and against which the Revenue preferred appeal before the Tribunal which has been The relevant para of the “6. After hearing the Ld. D.R. and perusing the material on record, we observe that Ld. CIT(A) has passed the appellate order after following the decision of Hon’ble Gujarat High Court in the case of CIT vs. P. Sheth (supra) wherein it has been held that in case of bogus purchases only profit element embedded in the bogus purchases is to be assessed. We note that the co been taking a consistent view that in case of b rate ranging between 2% to 12.5% whereas the Ld. CIT(A) has directed to assess the income @ 12.5% which is quite justified and reasonable and therefore we do not find any reason why the Revenue is aggrieved by this order. According CIT(A) by dismissing the appeal of the revenue.” 4.1 In view of the above, it is evident that there is apparent mistake on record in deciding the appeal of the Tribunal. Tribunal has decided quantum addition, whereas the appeal levying penalty u/s 271(1)(c) of the Income Accordingly, we recall the 02.07.2021and direct the Registry to fix the appeal in due course under intimation to the assessee. M/s Evergreen Water Technologies Pvt. MA No. 105/M/2022 “6. After hearing the Ld. D.R. and perusing the material on record, we observe that Ld. CIT(A) has passed the appellate order after following the decision of Hon’ble Gujarat High Court in the case of CIT vs. P. Sheth (supra) wherein it has been held that in case of bogus purchases only profit element embedded in the bogus purchases is to be assessed. We note that the co-ordinate benches of the Tribunal have been taking a consistent view that in case of bogus purchases only a GP rate ranging between 2% to 12.5% whereas the Ld. CIT(A) has directed to assess the income @ 12.5% which is quite justified and reasonable and therefore we do not find any reason why the Revenue is aggrieved by this order. Accordingly, we uphold the order of the ld CIT(A) by dismissing the appeal of the revenue.” In view of the above, it is evident that there is apparent mistake on record in deciding the appeal of the Tribunal. decided the appeal assuming the a quantum addition, whereas the appeal was against relief allowed on levying penalty u/s 271(1)(c) of the Income-tax Act, 1961. recall the order of the Tribunal and direct the Registry to fix the appeal in due course under intimation to the assessee. M/s Evergreen Water Technologies Pvt. Ltd. MA No. 105/M/2022 3 “6. After hearing the Ld. D.R. and perusing the material on record, we observe that Ld. CIT(A) has passed the appellate order after following the decision of Hon’ble Gujarat High Court in the case of CIT vs. Simit P. Sheth (supra) wherein it has been held that in case of bogus purchases only profit element embedded in the bogus purchases is to ordinate benches of the Tribunal have ogus purchases only a GP rate ranging between 2% to 12.5% whereas the Ld. CIT(A) has directed to assess the income @ 12.5% which is quite justified and reasonable and therefore we do not find any reason why the Revenue ly, we uphold the order of the ld In view of the above, it is evident that there is apparent mistake on record in deciding the appeal of the Tribunal. The the appeal against relief allowed on tax Act, 1961. order of the Tribunal dated and direct the Registry to fix the appeal in due course 5. Accordingly, the Miscellaneous Application filed by the Revenue is allowed. Order pronounced in the C Sd/- (SANDEEP SINGH KARHAIL JUDICIAL MEMBER Mumbai; Dated: 01/07/2022 Rahul Sharma, Sr. P.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. //True Copy// M/s Evergreen Water Technologies Pvt. MA No. 105/M/2022 Accordingly, the Miscellaneous Application filed by the ounced in the Court on 01/07/2022. Sd/ SANDEEP SINGH KARHAIL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai M/s Evergreen Water Technologies Pvt. Ltd. MA No. 105/M/2022 4 Accordingly, the Miscellaneous Application filed by the Sd/- PRAKASH KANT) MEMBER Sr. Private Secretary) ITAT, Mumbai