R R ENTERPRISES, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 13(2), MUMBAI

MA 277/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5537 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Bogus purchase
• Section: 254(2); 13(2)

Judgement Text

1 MA 277/MUM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI C.N.PRASAD (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NO.277/MUM/2018 (ARISING OUT OF ITA NO.3240/MUM/2016) (ASSESSMENT YEAR : 2009-10) M/S. R.R.ENTERPRISES B-9/10, KANMOOR HOUSE 281/287, NARSHI NATHA STREET MUMBAI-400 009 PAN : AAAFR3906N VS ACIT 13(2) MUMBAI APPLICANT RESPONDENT APPLICANT BY DHARMIL JHAVERI RESPONDENT BY CHAITANYA ANJARIA DATE OF HEARING 0 6.09 .2019 DATE OF PRONOUNCEMENT 01 . 10 .2019 O R D ER PER G MANJUNATHA: AM THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON U/S. 254(2) OF THE I.T.ACT, 1961 AND REQUESTED TO RECALL ORDER OF THE TRIBUNAL IN ITA.N0.3240/MUM/2016, DATED 13/10/2017 FOR AY 2009- 10. 2 MA 277/MUM/2018 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES STA TED TO BE APPARENT FROM THE ORDER OF THE TRIBUNAL DATED 13/10 /2017. THE RELEVANT CONTENTS OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARE REPRODUCED AS UNDER:- STATEMNT OF FACTS PARTICULARS ADDITION IN A.O. BY ITO ADDITION IN CIT(A) ADDITION BY ITAT BOGUS PURCHASES OF RS. 1,09,71,084/- @5.74%- RS.6,29,740/- @5.74%- RS.6,29,740/- @12.5% 13,71,385/- @25%- RS.27,42,771/- TOTAL ADDITION RS.33,72,511/- RS.6,29,740/- @12.5% 13,71,385/- THE ASSESEE HAD SUBMITTED THE SECOND APPEAL BEFORE THE HONBLE ITAT WITH THE PRAYER THAT ADDITION @5.74% OF THE BOGUS PURCHA SES MAY BE DELETED IN FULL. THERE WAS NO APPEAL OF THE REVENUE AGAINST THE CIT( A) ORDER. IT MEANS THAT REVENUE HAS ACCEPTED THE ORDER OF THE LD.CIT(A) AND ACCEPTED THE ADDITION @5.74% OF THE BOGUS PURCHASES. THERE IS NO SHOW CAUSE FOR ENHANCEMENT OF GP @12.5% FROM 5.74% OF BOGUS PURCHASES. THE HONBLE ITAT HAS NOT GRANTED OPPORTUNITY OF HEA RING TO THE APPELLANT BEFORE ENHANCEMENT IN GP ADDITION FROM THE ORDER OF THE LD.CIT(A). PRAYER: THE APPELLANT HEREBY PRAYS THAT THE HONBLE ITAT M AY PAS AN APPROPRIATE ORDER BY EITHER DELETING THE ENHANCEMEN T OR RECALLING THE ORDER OR ANY ORDER AS THE HONBLE ITAT DEEMS FIT. FOR THIS A CT OF KINDNESS, THE ASSESSEE WILL ALWAYS BE OBLIGED. 3. WE HAVE HEARD THE LD. COUNSELS OF BOTH THE PARTI ES AND PERUSED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALONG WITH ORDER OF THE TRIBUNAL IN ITA.NO.3240/MUM/2016 AND FIND THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL, IN AS MUCH AS, THE TRIBU NAL HAS DIRECTED THE 3 MA 277/MUM/2018 AO TO ESTIMATE 12.5% PROFIT ON ALLEGED BOGUS PURCHA SES AS AGAINST ADDITIONS MADE BY THE LD. AO @ 5.74% OF SUCH BOGUS PURCHASES WITHOUT ANY APPEAL BY THE REVENUE. THEREFORE, WE AR E OF THE CONSIDERED VIEW THAT SAID MISTAKE CONSTITUTES A MISTAKE APPARE NT ON RECORD, WHICH COULD BE RECTIFIED U/S 254(2) OF THE I.T.ACT, 1961. ACCORDINGLY, WE DEEM IT APPROPRIATE TO MODIFIED THE ORDER OF THE TRIBUNAL A ND DIRECT THE AO TO RESTRICT ADDITIONS MADE TOWARDS ALLEGED BOGUS PURCH ASES TO 5.74% OF SUCH BOGUS PURCHASES. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01 .10.2019. SD/- SD/- C.N.PRASAD G MANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 01.10.2019 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//