SANJAY KASHIRAM GOYAL, NAVI MUMBAI V. INCOME TAX OFFICER 28(3)(1), NAVI MUMBAI

MA 152/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2396 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 01-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D M
• Assessee Lawyers: DEEPAK RAJE
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR , ACCOUNTANT MEMBER M.A. NO.152/MUM./2018 ARISING OUT OF ITA NO. 5115/MUM./2015 ( ASSESSMENT YEAR : 20 09 10 ) SHRI SANJAY KASHIRAM GOYAL E 1102, PATEL HERITAGE SECTOR 7, KHARGHAR NAVI MUMBAI 410 210 PAN AHFPG9521J . APPLICANT V/S INCOME TAX OFFICER WARD 28(3)(1), MUMBAI . RESPONDENT M.A. NO.153/MUM./2018 ARISING OUT OF ITA NO. 5116/MUM./2015 ( ASSESSMENT YEAR : 20 10 11 ) SHRI SANJAY KASHIRAM GOYAL E 1102, PATEL HERITAGE SECTOR 7, KHARGHAR NAVI MUMBAI 410 210 PAN AHFPG9521J . APPELLANT V/S INCOME TAX OFFICER WARD 28(3)(1), MUMBAI . RESPONDENT ASSESSEE BY : SHRI DEEPAK RAJE REVENUE BY : SHRI D.M. PANSARI DATE OF HEARING 2 4 .0 8 .2018 DATE OF ORDER 09.11.2018 2 SHRI SANJAY KASHIRAM GOYAL O R D E R PER SAKTIJIT DEY, J.M. BY WAY OF THE AFORESAID MISC. APPLICATIONS , PURPORTED LY FILED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT), THE ASSESSEE SEEKS RECALL OF THE ORDER DATED 18 TH AUGUST 2017, PASSED IN ITA NO.5115 AND 5116/MUM./2015. 2. THE SUM AND SUBSTANCE OF ASSESSEES CONTENTION AS STATED IN THE MISC. APPLICATION AS WELL AS THROUGH SUBMISSIONS MADE BEFORE US IS, SINCE , THE RATE OF VAT ON IRON AND STEEL AS APPLICABLE FOR THE RELEVANT PERIOD WAS 4% , THE TRIBUNAL SHOULD HAVE ESTIMATED TH E PROFIT ON ACCOUNT OF BOGUS PURCHASES @ 4% INSTEAD OF 12.5%. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSING THE CONTENTION OF THE ASSESSEE SUBMITTED THAT THE TRIBUNAL UPON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, HA VING TAKEN A DECISION TO ESTIMATE THE PROFIT @ 12.5% OF THE BOGUS PURCHASES , THERE IS NO MISTAKE APPARENT ON THE FACE OF RECORD WHICH COULD BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. ON A CAREFUL READING OF THE APPEAL ORDER PASSED BY THE TRIBUNAL IT IS VERY MUCH CLEAR THAT AFTER CONSIDERING THE FACT THAT THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF PURCHASES MADE FROM THE 3 SHRI SANJAY KASHIRAM GOYAL DECLARED SOURCE AS WELL AS OTHER FACTS AND MATERI AL ON RECORD, HAS DECIDED THAT SINCE THE SALES EFFECTED BY THE ASSESSEE IS NOT DOUBTED, ONLY THE PROFIT ELEMENT EMBEDDED IN THE BOGUS PURCHASES HAS TO BE BROUGHT TO TAX. KEEPING IN VIEW THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL HAS ESTI MATED THE PROFIT @ 12.5% OF THE BOGUS PURCHASES. FURTHER, THE TRIBUNAL HAS DIRECTED TO REDUCE THE GROSS PROFIT ALREADY DECLARED BY THE ASSESSEE IN THE RESPECTIVE ASSESSMENT YEARS. THE TRIBUNAL AFTER TAKING INTO ACCOUNT THE RELEVANT FACTS AND MATERIAL ON RE CORD, HAVING TAKEN A CONSCIOUS DECISION TO ESTIMATE PROFIT @ 12.5% OF THE BOGUS PURCHASES, THERE CANNOT BE ANY MISTAKE APPARENT ON THE FACE OF RECORD REQUIRING RECTIFICATION UNDER SECTION 254(2) OF THE ACT. IN OUR VIEW, IN THE GARB OF RECTIFICATION OF MIST AKE APPARENT ON THE FACE OF RECORD AS ENVISAGED UNDER SECTION 254(2) OF THE ACT, THE ASSESSEE IN REALITY SEEKS REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THIS, IN OUR VIEW, IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THUS, THE APPLICATIONS FILED BY THE BEING DEVO ID OF MERIT ARE DISMISSED. 5. IN THE RESULT, BOTH THE MISC. APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.11.2018 SD/ - RAMIT KOCHAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 09.11.2018 4 SHRI SANJAY KASHIRAM GOYAL COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI