INCOME TAX OFFICER 25(2)(5), MUMBAI V. KIRTI K DOSHI, MUMBAI

MA 285/MUM/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1565 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.285/M/2018 (ARISING OUT OF ITA NO.3532/M/2018) ASSESSMENT YEAR: 2009-10 MR. KITRI DOSHI, 302, SHANTI SADAN, DADABHAI RD., VILE PARLE (W), MUMBAI 400 056 PAN: AABPD 1906B VS. ITO 25(2)(5), PRATYAKSHAKAR BHAVAN, BKC BANDRA (E), MUMBAI 400 051 MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI NEEL KHANDELWAL, A.R. REVENUE BY : SHRI CHAUDHARY ARUN KUMAR SINGH, D. R. DATE OF HEARING : 21.12.2018 DATE OF PRONOUNCEMENT : 31.12.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE SEEKS THE AMENDMENT OF THE ORDER PASSED IN ITA NO.3532/M/2017 A.Y. 2009-10 DATED 27.10.2017. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT THE ORDER PASSED BY THE TRIBUNAL IS INCORRECT IN SO FAR AS TH E OBSERVATIONS OF THE HONBLE TRIBUNAL QUA THE BOGUS PURCHASES ARE CONCERNED AS NOTHING WAS BROUGHT ON RECORD BY AO OR CIT TO PR OVE THAT ASSESSEE HAS AVAILED BOGUS BILLS FROM HAWALA DEALER S. FURTHER, THE LD. A.R. REFERRING TO THE OBSERVATIONS OF THE TRIBUNAL IN THE SAID ORDER THAT THE APPLICANT MIGHT HAVE PURCHASED THE GOODS MA NO.285/M/2018 (ARISING OUT OF ITA NO.3532/M/2018) MR. KITRI DOSHI 2 FROM THE GREY MARKET IS JUST BASED ON PRESUMPTIONS AND ASSUMPTIONS AND AGAINST THE DECISION OF THE VARIOUS JUDICIAL FORUMS. THE LD. A.R. SUBMITTED THAT THE VAT IN THE CASE OF ASSESSEE IS ONLY 4% AND THE ASSESSEE HAS DECLARED A GP OF 10.78% WHICH SHOULD BE ALLOWED TO BE DEDUCTED FROM THE GP RATE APPLIED BY THE TRIBUNAL IN ORDER TO BRING THE SO CALLED BOGUS PURCHASES TO TAX. THE LD AR PRAYED THAT TO THIS EXT ENT THE ORDER OF THE TRIBUNAL CONTAINS PRIMA FACIE ERRORS WHICH N EEDS TO BE CORRECTED. 3. THE LD. D.R., ON THE OTHER HAND, RELIED HEAVILY ON THE ORDER OF TRIBUNAL BY SUBMITTING THAT THERE IS NO MISTAKE APPARENT ON THE FACE OF THE ORDER AND THEREFORE THE MA FILED BY THE ASSESSEE SHOULD BE DISMISSED. 4. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD, WE ARE OF THE VIEW THAT THE LD. A.R. BY WAY OF MISCELLANEOUS APPLICATION HAS ONLY PRAYED BEFORE TH E BENCH TO EXPUNGE THE CERTAIN OBSERVATIONS AS REGARDS THE BOG US PURCHASES AND PURCHASE OF MATERIAL FROM THE GREY MA RKET. THE LD. A.R. ALSO REQUESTED BEFORE THE BENCH THAT THE G P DECLARED BY THE ASSESSEE SHOULD BE DEDUCTED FROM THE GP RATE AP PLIED FOR BRINGING THE BOGUS PURCHASES TO TAX I.E. THE GP TO BE APPLIED SHOULD BE 12.5% - 10.78%. HAVING CONSIDERED THE FA CTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT ON THE FACE OF THE ORDER WHICH JUS TIFY THE MISCELLANEOUS APPLICATION IN THE PRESENT CASE. THE TRIBUNAL HAS TAKEN A CONSIDERED AND CONSCIOUS DECISION B ASED UPON MA NO.285/M/2018 (ARISING OUT OF ITA NO.3532/M/2018) MR. KITRI DOSHI 3 THE FACTS OF THE CASE. WE ARE, THEREFORE, INCLINED TO DISMISS THE MISCELLANEOUS APPLICATION. 5. THE MISCELLANEOUS APPLICATION FILED BY THE ASSES SEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.12.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 31.12.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.