ASST CIT 14(3), V. JITENDRA HARSHADKUMAR & COMPANY,

MA 110/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2114 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2007-2008
• Appeal Filed On: 13-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J BEFORE SHRI P.M. JAGTAP, AM AND SHRI S.T.M. PAVALAN , JM MA NOS.107 TO 113/MUM/2014 ARISING OUT OF ITA NOS. 3141 TO 3144/M/2012 & ITA N OS.4349 TO 4351/M/2012 ASSESSMENT YEARS. 2005-06, 2006-07, 2007-08 &2008-0 9. ASSTT. COMMISSIONER OF INCOME TAX 14(3), 6 TH FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI 400 021. PAN AAAFJ 0271E VS. M/S. JITENDRA HARSHADKUMAR & COMPANY, SHOP NO.685, GROUND FLOOR, GOVIND CHOWK M.J.MARKET MUMBAI. 400 002 APPLICANT RESPONDENT APPELLANT BY SHRI MAURYA PRATAP (DR) RESPONDENT BY SHRI BHUPENDRA SHAH DATE OF HEARING : 18-07-2014 DATE OF PRONOUNCEMENT : 25 -07-2014 ORDER PER P.M. JAGTAP, A.M. BY THESE MISC. APPLICATIONS, THE REVENUE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE COMMON ORDER OF THE TR IBUNAL DTD. 13-11-2013 PASSED IN ITA NOS.3141 TO 3144/MUM/2012 & 4349 TO 4351/M/2012 FO R A.YS. 2005-06, 2006-07, 2007-08 & 2008-09. 2. AS SUBMITTED BY THE REVENUE IN THE PRESENT APPLI CATION AND FURTHER REITERATED BY LEARNED DR AT THE TIME HEARING BEFORE US, THE RECTI FICATION OF THE ORDER OF THE TRIBUNAL DATED 13.11.2013 IS BEING SOUGHT ON THE FOLLOWING G ROUNDS: 2 MA NOS.107 TO 1 13/MUM/2014 2. THE INCOME TAX APPELLANT TRIBUNAL J BENCH VID E ORDER DATED 13.11.2013 HAS ALLOWED THE APPEAL OF THE ASSESSEE AND DISMISSED THAT OF THE RE VENUE. THE GROUNDS RAISED IN THE SAID APPEAL ARISES OUT OF THE IMPUGNED ORDER OF THE LD. CIT(A) WHEREIN THE FOLLOWING GROUNDS WERE RAISED:- 1. THE LD. CIT(A) HAS ERRED IN LAWS AS WELL AS FAC T BY NOT SUSTAINING ADDITION U/S 69 AFTER ACCEPTED THE FINDING IN PRINCIPLE THAT THERE WAS INVOLVEMENT OF CASH TO HAVE PURCHASES MADE FROM UNDISCLOSED/UNVERIFIABLE PARTIE S AND PURCHASEES FROM THE CONCERNS OF SHRI RAKESH GUPTA & FAMILY WAS ONLY ACCOMMODATIO N ENTRIES AND NOT BY ACTUAL PURCHASE. 2.THE LD. CIT(A) ERRED IN LAW AS WELL AS FACT BY NO T SUSTAINING ANY ADDITION ON THE PEAK VALUE OF ACHS INVOLVED IN MAKING PURCHASE FROM THE SO CALLED UNIDENTIFIABLE PARTIES U/S 69. 3. THE ADDITIONAL GROUND OF THE APPEAL RAISED WAS A S UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) AFTER HAVING ACCEPTED THE FACT THAT THE PURCHASE MADE FROM OR THROUGH SHRI RAKESH KUMAR GUPTA AND HIS FAMILY MEMBERS ARE BOGUS, ERRED IN LAW IN NOT CONFIRMING THE ADDITION AT LEAST TO THE EXTENT OF PEAK OF THE PURCHASES MADE FROM SUCH PARTIES ON ACCOUNT OF BOGUS PURCHASE S MADE IN CASH FROM THE OPEN MARKET OUT OF UNACCOUNTED CASH, IN VIEW OF THE DECISION HELD IN A HMEDABAD HONBLE ITATS C-BENCH DECISION DECIDED IN THE CASE OF VIJAY PROTEINS LTD. VS. ACIT 58 ITD 428. 4. THE HONBLE ITAT, VIDE ITS ABOVE MENTIONED ORDER DT. 24.9.2013 HAS DISMISSED THE APPEAL FILED BY THE REVENUE. ON THE FACTS AND CIRCUMSTANCES OF T HE CASE, THE HONBLE ITAT HAS NOT APPRECIATED THE GROUNDS RAISED BY THE REVENUE ON THE ISSUE OF A DDITION U/S AND PEAK ADDITION ON THE BASIS OF CASH INVESTED FOR PURCHASE MADE IN GREY MARKET. FUR THER, THE HONBLE ITAT HAS ALSO IGNORED THE DECISION OF THE HONBLE ITAT C BENCH AHMEDABAD IN THE CASE OF M/S. VIJAY PROTEINS VS. ACIT 58 ITD 428. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND A LSO PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. IT IS OBSERVED THAT THE ISSUE RAISED IN THE RELEVANT ORIGINAL GROUND AS WELL AS IN THE ADDITIONAL GROUND RELATING TO ADDITION MADE U/S 69 WAS DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 13.11.2013, FO LLOWING THE ORDER OF ITS CO-ORDINATE BENCH PASSED IN THE CASE OF JITENDRA HARSHADKUMAR T EXTILES ( ITA NO.771&2211/M/2011 DATED 21.11.2012) WHEREIN A SIMILAR ISSUE WAS DECID ED IN FAVOUR OF THE ASSESSEE INVOLVING IDENTICAL FACTS AND CIRCUMSTANCES. THERE IS NOTHING BROUGHT ON RECORD BY THE REVENUE TO POINT OUT THAT THE ORDER PASSED IN CASE OF JITENDRA HARSHADKUMAR TEXTILES (SUPRA) HAS BEEN RECTIFIED BY THE TRIBUNAL OR EVEN ANY MISC. APPLICA TION HAS BEEN FILED BY THE REVENUE SEEKING SUCH RECTIFICATION IN THAT CASE WHICH IS PE NDING BEFORE THE TRIBUNAL. WE THEREFORE, FIND NO MERIT IN THESE MISC. APPLICATION S FILED BY THE REVENUE AND DISMISS THE SAME. 3 MA NOS.107 TO 1 13/MUM/2014 4. IN THE RESULT, THESE MISC. APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 25.07.2014.` SD/- SD/- (S.T.M. PAVALAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 25.07.2014 A.K. PATEL COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED - MUMBAI 4. THE CIT- CONCERNED, MUMBAI 5. THE DR BENCH, J 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI