INCOME TAX OFFICER-11(3)(4), MUMBAI V. WESTERN IMAGINARY TRANSCON PRIVATE LIMITED , MUMBAI

MA 123/MUM/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0631 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 28-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SREEKALA PARDESHI
• Keywords: Bogus purchase; Rectification of order; Set aside
• Section: 254(2); 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI SHAKTIJIT DEY (JM) M.A. NO. 123/MUM/2020 ARISING IN I.T.A. NO. 4929/MUM/2017 (ASSESSMENT YEAR 2011-12) M/S. WESTERN IMAGINARY TRANSCON PRIVATE LIMITED 101, SHREEJI DARSHAN DIXIT CROSS ROAD NO. 1 VILE PARLE EAST MUMBAI-400 057. PAN : AAACW8917H VS. ITO-11(3)(4) ROOM NO. 429 AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI DEVENDRA JAIN DEPARTMENT BY MS. SREEKALA PARDESHI DATE OF HEARING 15.01.2021 DATE OF PRONOUNCEMENT 19.02.2021 O R D E R PER SHAMIM YAHYA (AM) :- BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE ORDER OF THIS T RIBUNAL IN ITA NO. 4929/MUM/2017 VIDE ORDER DATED 20.8.2019 PERTAINING TO ASSESSMENT YEAR 2011-12. 2. THE ITAT IN THE SAID ORDER HAS SET ASIDE THE ORD ER OF LEARNED CIT(A) ON THE ISSUE OF CASH CREDIT WITHIN THE MEANING OF SECT ION 68 OF THE INCOME TAX ACT FOR AN AMOUNT OF RS. 1,90,95,000/-AND ALSO SET ASID E THE ORDER OF LEARNED CIT(A) IN WHICH HE HAS GRANTED RELIEF TO THE ASSESS EE OF RS. 92,54,561/- BY RESTRICTING DISALLOWANCE ON ACCOUNT OF BOGUS PURCHA SES. 3. BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASS ESSEE HAS MADE TWELVE PAGES SUBMISSIONS SUBMITTING THAT THERE ARE MISTAKE S APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL WHICH ARE RECTIFIABLE U/S . 254(2) OF THE I.T. ACT. M/S. WESTERN IMAGINARY TRANSCON PRIVATE LIMITED 2 4. AS REGARDS THE ISSUE OF CASH CREDIT IN UNSECURED LOAN IT IS THE SUBMISSIONS OF THE ASSESSEE THAT THERE ARE CERTAIN FACTUAL INCONSISTENCIES IN THE ORDER OF THE TRIBUNAL. THAT THE TRIBUNAL HELD T HAT THAT UNSECURED LOANS MUST BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE F OR THE ASSESSMENT YEAR. THE TRIBUNAL HAS INCORRECTLY RECORDED VARIOUS DETAILS F ILED BY THE ASSESSEE WHICH HAS AFFECTED THE ULTIMATE OUTCOME OF THE IMPUGNED O RDER. THE ASSESSEE HAS REFERRED SEVERAL INSTANCES THAT ITAT HAS ERRED THAT CERTAIN DOCUMENTS WERE NOT FILED. 5. FURTHER WITH REGARD TO THE ADDITION ON ACCOUNT O F BOGUS PURCHASES, IT HAS BEEN SUBMITTED THAT AGAIN THERE ARE SOME FACTUA L INACCURACIES IN THE ORDER OF THE ITAT, WHICH HAVE AFFECTED THE OUTCOME OF THE MATTER SUBSTANTIALLY, WHICH ARE MISTAKE APPARENT FROM FACE OF THE RECORD. IT HAS BEEN SUBMITTED THAT THERE CERTAIN FACTS WERE WRONGLY APPRECIATED. THAT SEVERAL INCONSISTENCIES POINTED IN THE ASSESSING OFFICERS ORDER HAVE REMAI NED UN-REBUTTED. IT HAS BEEN CLAIMED THAT ERROR IN LORRY NUMBER POINTED OUT BY THE ITAT FROM THE PAPER BOOK WERE NEVER RAISED ANY OF THE LOWER AUTHO RITIES EARLIER. THAT SEVERAL CASE LAWS WERE CITED THAT 12.5% BOGUS PURCHASES WAS TO BE SUSTAINED. THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE O F PCIT VS. MOHAMMAD HAJI ADAM & COMPANY (ITA NO. 1004 OF 2016 VIDE ORDE R DATED 11.2.2019) SHOULD HAVE BEEN CONSIDERED BY THE TRIBUNAL. HENCE, IT HAD BEEN PLEADED THAT THERE IS MISTAKE APPARENT FROM RECORD AS HELD BY HO N'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANG E LTD. (305 ITR 227). THAT THE TRIBUNAL HAD ERRED AND FAILED TO CONSIDER THAT THE ASSESSEE HAD ALREADY RECORDED CORRESPONDING SALES FOR SEVERAL OF THE ALLEGED BOGUS PURCHASES. THEREFORE THE ITAT WAS INCORRECT IN SUST AINING 100% DISALLOWANCE FOR BOGUS PURCHASES. 6. LEARNED COUNSEL OF THE ASSESSEE IN THIS REGARD P LACED RELIANCE IN THE CASE OF NISHA SYNTHETICS LTD. VS. CIT (291 CTR 328) FOR THE PROPOSITION THAT WHERE TRIBUNAL HAD ALREADY RECEIVED SOME DOCUMENTS , AS FILED BY ASSESSEE M/S. WESTERN IMAGINARY TRANSCON PRIVATE LIMITED 3 THOUGH NOT AS CLAIMED BY ASSESSEE BEFORE HIGH COURT , TRIBUNAL WAS DIRECTED TO HEAR APPEAL OF ASSESSEE AFRESH ON BASIS OF SAID DOC UMENTS. LEARNED COUNSEL OF THE ASSESSEE FURTHER REFERRED TO THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF AMORE JEWELS PRIVATE LIMITED VS. DCI T (WRIT PETITION NO. 1833 OF 2018 VIDE ORDER DATED 3.8.2018) WHEREIN HON'BLE HIG H COURT HAD DIRECTED THAT THE TRIBUNAL OUGHT TO HAVE ALLOWED THE PETITIONERS RECTIFICATION APPLICATION AND CONSIDERED THE PETITIONERS APPEAL BEFORE IT ON MER ITS, INTER ALIA TAKING INTO ACCOUNT THE MATERIAL AND CASE LAWS WHICH HAS BEEN A LREADY FILED BY THE PETITIONER DURING THE HEARING. 7. PER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ITAT HAS PASSED WELL REASONED AND ELABORATE ORDER. THE ASSESSEE IS TRYING TO SEEK REVIEW OF THAT ORDER IN THE GUISE OF RECTIFICA TION OF THE MISTAKE APPARENT FROM RECORD. 8. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ITA T HAS ELABORATELY DISCUSSED THE ISSUES BOTH AS REGARDS ADDITION U/S. 68 OF THE ACT AND DISALLOWANCE OF BOGUS PURCHASES. WE ARE OF THE CONS IDERED OPINION THAT THE ASSESSEES CLAIM THAT ITAT HAS ERRED IN APPRECIATIN G SOME OF THE EVIDENCE AND SUBMISSIONS DO NOT AMOUNT TO MISTAKE APPARENT FROM RECORD LIABLE TO BE RECTIFIED U/S. 254(2) OF THE I.T. ACT. THE CASE LAW S REFERRED BY THE ASSESSEE BEFORE US IN THE MISCELLANEOUS PETITION ARE NOT AT ALL APPLICABLE TO THE FACTS OF THE PRESENT CASE. VARIOUS DECISIONS REGARDING CASH CREDIT AND BOGUS PURCHASES CLAIMED TO HAVE BEEN FILED BY THE ASSESSEE IN THE A PPEAL PROCEEDINGS ARE ALSO ON THE FACTS OF THE INDIVIDUAL CASE. EVEN THE DECIS ION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF MOHAMMAD HAJI ADAM & COMPANY ( SUPRA) IS ALSO ON THE FACTS OF THE INDIVIDUAL CASE OF TRADING CONCERN AND BY NO STRETCH OF IMAGINATION LAYS DOWN A SPECIFIC LAW TO BE UNIVERSALLY FOLLOWS ON ACCOUNT OF BOGUS PURCHASES. APPRECIATION OF THE FACTS BY THE TRIBUNA L WHICH AS PER THE ASSESSEE IS ERRONEOUS OR WRONG CANNOT PERMIT REVIEW OF THE S AME BY ANOTHER BENCH OF THE TRIBUNAL IN THE MISCELLANEOUS APPLICATION. M/S. WESTERN IMAGINARY TRANSCON PRIVATE LIMITED 4 HENCE, IN OUR CONSIDERED OPINION THERE IS NO MISTAK E APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. HENCE, THIS MISCELLANEOU S APPLICATION BY THE ASSESSEE STANDS DISMISSED. 9. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISM ISSED. ORDER PRONOUNCED UNDER RULE 34(4) OF THE ITAT RULE S BY PLACING THE RESULT ON NOTICE BOARD ON 19.2.2021. SD/- SD/- (SHAKTIJIT DEY) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 19/02/2021 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// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI