M/S J. KUMAR INFRAPROJECTS LTD, MUMBAI V. DCIT CEN CIR 5(1), MUMBAI

MA 203/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4053 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2016-2017
• Appeal Filed On: 13-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Tax effect; Bogus

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JM & SHRI OM PRAKASH KANT, AM M. A. No. 203/Mum/2021 Arising out of ITA No. 3453/Mum/2019 (Assessment Year: 2016-17) & M. A. No. 276/Mum/2021 Arising out of ITA No. 3882/Mum/2019 (Assessment Year: 2016-17) J. Kumar Infraprojects Ltd. 16A, Andheri Industrial Estate, Veera Desai Road, Andheri (W), Mumbai-400 053 बनाम/ Vs. DCIT CC-5(1) R. No. 1928, Air India Building, Nariman Point, Mumbai-400 021 स्थायीलेखासं./जीआइआरसं./PAN No. AABPM9375P (अपीलाथी/Appellant) : (प्रत्यथी / Respondent) अपीलाथीकीओरसे/ Appellant by : Shri Shashi Bekal, Ld. AR प्रत्यथीकीओरसे/Respondent by : Shri B. K. Bagchi, Ld. DR सुनवाईकीतारीख/ Date of Hearing : 20.05.2022 घोषणाकीतारीख / Date of Pronouncement : 07.06.2022 2 I.T.A. No. 203 & 2 76/Mum/2021 J. Kumar Infraprojects Ltd. आदेश / O R D E R Per Amit Shukla, Judicial Member: The aforesaid Misc. Applications (MAs) have been filed by the applicant /assessee stating that there has been inadvertent error in the order passed by the Tribunal while deciding the bunch of cross appeals for AY 2012-13 to 2016-17, wherein the Tribunal despite deciding the issue, has not mentioned about the assessee’s appeal ITA No. 3453/Mum/2019 and department appeal ITA No. 3882/Mum/2019 for the AY 2016-17. 2. Ld. Counsel for the assessee stated that in all the 11 appeals pertaining to assessee for the AYs 2012-13 to 2016-17:-  5 assessee’s appeals ITA No. 3449-53/Mum/2019 for AY 2012-13 to 2016-17; and  6 departmental appeals ITA No. 3382/Mum/2019 for AY 2011- 12 to 2016-17.  Out of 6 departmental appeal, 3 appeals viz. ITA No. 3887/MUM/2019 for AY 2011-12, ITA 3886/MUM/2019 for AY 2012-13 and ITA 3887/MUM/2019 for AY 2013-14 were dismissed on account of Low tax effect. 3 I.T.A. No. 203 & 2 76/Mum/2021 J. Kumar Infraprojects Ltd. The Tribunal has considered appeal for the AY 2015-16 as the lead appeal as it included all the issues which were exactly same in all the years. In the said appeal, the assessee’s appeals were allowed and revenue’s appeals were dismissed. However, the Tribunal inadvertently has not specifically given any findings for AY 2016-17 for the Assessee Appeal, being ITA 3453/MUM /2019; and Departmental appeal, ITA 3882/MUM/2019. 3. It has been submitted that the Ground No. 1 & 2 raised in the Departmental Appeal pertaining to bogus cement purchases is same as the Ground No 1 raised by the Assessee. The same corresponds to Ground 3 & 4 of the Departmental Appeal in AY 2015-16 (Lead Year) & Ground No 1 raised by the Assessee in AY 2015-16 (Lead Year). The same have been decided in para 12 at page 18 of the Order of the Tribunal dated February 22, 2021. Similarly, the Ground No. 3 & 4 raised in the Departmental Appeal corresponds to Ground 5 & 6 of the Departmental Appeal in AY 2015-16 (Lead Year). The same have been decided in para 18 at page 28 of the order of the Tribunal dated February 22, 2021. 4 I.T.A. No. 203 & 2 76/Mum/2021 J. Kumar Infraprojects Ltd. 4. It has further been stated that the Tribunal has inadvertently missed to express the findings for AY 2016-17, albeit they have considered the facts, documents on record and contentions of both the sides, and subsequently dismissed all the revenue appeals and allowed all assessee’s appeals. 5. On the other hand, Ld. DR admitted that there was inadvertent mistake. 6. On the perusal of the Tribunal order, we find that Tribunal has decided the issue in bunch of appeal for AY 2012-13 to 2016- 17 and the Tribunal took AY 2015-16 as lead case for deciding revenue’s appeal as well as assessee’s appeal and finally concluded as under:- 19. The issue of bogus purchases raised in ground no. 1 in ITA No. 3449/Mum/2019 AY 2012-13, 3450/Mum/2019AY 2013- 14, 2452/Mum/2019(All Assessee’s Appeals) and ground no. 3 & 4 in ITA No.3884/Mum/2019 AY 2014-15 the cross appeal by the revenue are identical to one as decided by us in Ground No. 1 in ITA No.3451/Mum/2019 assessee’s appeal and ground no. 3 & 4 in ITA No.3883/Mum/2019 AY 2015-16 ,cross appeal by the revenue wherein we have allowed the assessee’s appeal and 5 I.T.A. No. 203 & 2 76/Mum/2021 J. Kumar Infraprojects Ltd. dismissed the revenue’s appeal on the issue of bogus purchases. Accordingly our decision on ground No. 1 in ITA No.3451/Mum/2019 & ground no. 3 & 4 in ITA No.3883/Mum/2019 AY 2015-16 would, mutatis mutandis, apply to the above grounds as well. Consequently the issue of bogus purchases in assessee’s appeals is allowed and in revenue appeals dismissed. 20. The issue of bogus labour sub contract raised in ground no. 5 & 6 in ITA No. 3884/Mum/2019 AY 2014-15 by the revenue is identical to one as decided by in ground no. 5 and 6 in ITA No. 3883/Mum/2019 AY 2015-16 wherein we have dismissed the appeal of the revenue. Accordingly our finding/decision in ITA No. 3883/Mum/2019 would, mutatis mutandis, apply to ground 5 and 6 of this appeal as well. Consequently the ground no. 5 and 6 in the revenue appeal are dismissed. 7. Thus, the Tribunal has failed to mention about the similar grounds for AY 2016-17 in assessee’s appeal i.e. ITA No. 3453/Mum/2019 and revenue’s appeal i.e. ITA No. 3882/Mum/2019, despite the fact that Tribunal has stated that findings given in AY 2015-16 will apply mutatis mutandis for the other assessment year also as issues and grounds were same. Accordingly, we hold that the findings given for the AY 2015-16 6 I.T.A. No. 203 & 2 76/Mum/2021 J. Kumar Infraprojects Ltd. will apply for the assessee’s appeal, i.e., ITA No. 3453/Mum/2019, hence it is treated as allowed; and revenue’s appeal i.e. ITA No. 3882/Mum/2019 is treated as dismissed. 8. In the result, both the Misc. Applications filed by the assessee stands allowed. Orders pronounced in the open court on 7 th June, 2022 Sd/- Sd/- (Om Prakash Kant) (Amit Shukla) Accountant Member Judicial Member मुंबई Mumbai;ददनांक Dated : 07.06.2022 Sr.PS. Dhananjay आदेशकीप्रतितितिअग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned 5. दवभागीयप्रदतदनदध, आयकरअपीलीयअदधकरण, मुंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard File आदेशानुसार/ BY ORDER, .उि/सहायकिंजीकार (Dy./Asstt.Registrar) आयकरअिीिीयअतिकरण, मुंबई/ ITAT, Mumbai