DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 2 , KALYAN V. VINOD HARIRAM NARSINGHANI, ULHASNAGAR

MA 302/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0492 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTER H ANSARI
• Assessee Lawyers: K GOPAL MS NEHA PARANJPE
• Keywords: Bogus purchase; Search and seizure
• Section: 69C; 143(3)

Judgement Text

P A G E | 1 M.A. 302/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.191/MUM/2016) DY. COMMISSIONER OF INCOME TAX, CIRCLE - 2 VS. SHRI VINOD H. NARSINGHANI IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI M. BALAGANESH, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 302/MUM/2018 (ARISING OUT OF ITA NO.191/MUM/2016 ) (ASSESSMENT YEARS: 2009 - 10 ) DY. COMMISSIONER OF INCOME TAX, CIRCLE - 2, KALYAN, 2 ND FLOOR, MOHAN PLAZA, KHADAKPADA, WAYLE, NAGAR, KALYAN WEST - 421301 VS. SHRI VINOD HARIRAM NARSINGHANI PROP. PURE LUBES, HAPPY HOME, PLOT NO. - 611, 617, ULHASNAGAR - 01 PAN ACXPN4766H (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI AKHTER H. ANSARI, D.R RESPONDENT BY: SHRI K. GOPAL MS. NEHA PARANJPE, A .R DATE OF HEARING: 22 .11.2019 DATE OF PRONOUNCEMENT: 2 4 .12.2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE ON 25.04.2018 ARISES FROM THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF ACIT, CIRCLE - 2, KALYAN (W) VS. VINOD HARIRAM NARSINGHANI (ITA NO. 191/MUM/2016, DATED 08.11.2017 ) . 2. IT WAS SUBMITTED BY THE LD. D.R , THAT AS THE TRIBUNAL ON THE BASIS OF MISCONCEIVED FACTS PERTAINING TO A.Y. 2010 - 11, HAD DISPOSED OFF THE APPEAL FOR THE YEAR UNDER CONSIDERATION VIZ. A.Y. 2009 - 10, THEREFORE, THE SAME WAS REQUIRED TO BE RECA LLED. IN ORDER TO DRIVE HOME HIS AFORESAID CLAIM THAT THE ORDER PASSED BY THE TRIBUNAL WAS BASED ON MISCONCEIVED APPRECIATION OF FACTS, THE LD. D.R HAD TAKEN US THROUGH THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. P A G E | 2 M.A. 302/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.191/MUM/2016) DY. COMMISSIONER OF INCOME TAX, CIRCLE - 2 VS. SHRI VINOD H. NARSINGHANI 3. PER CONTRA, TH E LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE SUBMITTED THAT AS NO MISTAKE DID EMERGE FROM THE ORDER OF THE TRIBUNAL, THEREFORE, THE APPLICATION FILED BY THE REVENUE UNDER SEC.2 54(2) OF THE ACT DID NOT MERIT ACCEPTANCE AND WAS LIABLE TO BE DISMISSED. I N FACT, IT WAS AVERRED BY THE LD. A.R THAT THE PRESENT APPLICATION FILED BY THE REVENUE WAS IN ITSELF BASED ON INCORRECT APPRECIATION OF THE FACTS PERTAINING TO THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AND THAT OF THE IMMEDIATELY SUCCEEDIN G YEAR I.E A.Y. 2010 - 11. APART THEREFROM, IT WAS SUBMITTED BY THE LD. A.R THAT THE REV ENUE ON THE BASIS OF NEW SET OF FACTS WHICH WERE NEVER PLACED ON RECORD IN THE COURSE OF THE APPELLATE PROCEEDINGS, WAS NOW TRYING TO BUILD UP A NEW CASE. IT WAS THE CLAI M OF THE LD. A.R, THAT THE REVENUE IN THE GARB OF THE PRESENT MISCELLANEOUS APPLICATION WAS TRYING TO SEEK A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL ON THE BASIS OF FRESH SET OF FACTS . 4. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES AND PERUSED THE RECORDS. AS IS DISCERNIBLE FROM THE APPLICATION FILED BY THE REVENUE, WE F IND , THAT IT IS THE CLAIM OF THE REVENUE THAT THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASS ESSEE FOR THE YEAR UNDER CONSIDERATION I.E A.Y. 2009 - 10, HAD PROCEEDED WITH ON THE BASIS OF INCORRECT FACTS PERTAINING TO THE IMMEDIATELY SUCCEEDING YEAR I.E A.Y. 2010 - 11. FOR A FAIR APPRECIATION OF THE ISSUE LEADING TO THE PRESENT MISCELLANEOUS APPLICATI ON, WE SHALL BRIEFLY CULL OUT THE FACTS THEREIN INVOLVED. 5. IN THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED ON THE ASSESSEE, IT EMERGED THAT IN AYS. 2009 - 10 TO 2011 - 12 THE ASSESSEE HAD MADE BOGUS PURCHASES AGGREGATING TO RS.42,42,97,705/ - FROM VARIOUS HAWALA PARTIES. THE ASSESSEE IN HIS STATEMENT RECORD ED UNDER SEC.131 ADMITTED THAT THE PURCHASES OF GOODS AGGREGATING TO RS.42.43 CRORES WERE ACTUALLY MADE BY HIM FROM THE OPEN/GREY MARKET, AND HE HAD ONLY IN ORDER TO FACILITATE THE ROUTING OF THE SAID PUR CHASE TRANSACTIONS THROUGH HIS BOOKS OF ACCOUNTS PROCURED BOGUS BILLS FROM THE ACCOMMO DATION ENTRY PROVIDERS. ADMITTING , THAT BY PROCURING THE GOODS OF INFERIOR QUALITY FROM THE OPEN/GREY MARKET HE WOULD HAVE GENERATED ADDITIONAL PROFIT , THE ASSESSEE HAD C AME UP WITH A DISCLOSURE OF AN ADDITIONAL INCOME OF RS.11.15 CRORES FOR A.YS. 2009 - 10 TO 2 0110 - 12, AS UNDER: A.Y. TOTAL ACCOMMODATION BILLS TAKEN ADDITIONAL INCOME DISCLOSED 2009 - 10 RS.4,00,28,638/ - RS.1,25,00,000/ - 2010 - 11 RS.16,91,27,381/ - RS.4,50,00,000/ - 2011 - 12 RS.21,51,41,686/ - RS.5,40,00,000/ - P A G E | 3 M.A. 302/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.191/MUM/2016) DY. COMMISSIONER OF INCOME TAX, CIRCLE - 2 VS. SHRI VINOD H. NARSINGHANI TOTAL RS.42,42,97,705/ - RS.11,15,00,000/ - ON THE BASIS OF THE AFORESAID DISCLOSURE, THE ASSESSEE HAD OFFERED AN ADDITIONAL INCOME OF RS.1,25,00,000/ - IN THE YEAR UNDER CONSIDERATION I.E A.Y. 2009 - 10. HOWEVER, THE A.O DID NOT ACCEPT THE ADDITIONAL INCOME OF RS.1,25,00,000/ - OFFERED BY THE ASSESSEE IN A.Y. 2009 - 10, AND THEREIN DISALLOWED THE ENTIRE AMOUNT OF PURCHASE S OF RS.4,00,28,638/ - UNDER SEC.40A(3) OR SEC. 69C OF THE ACT. ON APPEAL, THE CI T(A) FINDING FAVOUR WITH THE CLAIM OF THE ASSESSEE RESTRICTED THE ADD ITION TO THE EXTENT OF THE ADDITIONAL INCOME OF RS.1,25,00,000/ - THA T WAS OFFERED BY THE ASSESSEE OVER AND ABOVE HIS REGULAR INCOME. AGGRIEVED, THE REVENUE CARRIED THE MATTER IN APPEAL BE FORE THE TRIBUNAL. IT WAS OBSERVED BY THE TRIBUNAL THAT THE REVENUE WHILE FRAMING THE ASSESSMENT UNDER SEC. 143(3) IN THE CASE OF THE ASSESSEE FOR A.Y. 2010 - 11 , WHEREIN IDENTICAL FACTS WERE INVOLVED, HAD ACCEPTED THE ADDITIONAL INCOME OF RS.4,51, 41,770/ - ( I.E 26.69% OF THE TOTAL VALUE OF THE ACCOMMODATION BILLS OF RS.16,91,27, 381/ - ) PERTAINING TO THE SAID YEAR. IN THE BACKDROP OF THE AFORESAID FACTS, IT WAS OBSERVED BY THE TRIBUNAL THAT NOW WHEN THE REVENUE HAD ACCEPTED THE PROFIT OF 26.69% OF THE AGGREGATE VALUE OF BOGUS PURCHASES IN THE CASE OF THE ASSESSEE FOR A.Y. 2010 - 11, THEREFORE, IT WAS BEYOND COMPREHENSION THAT AS TO WHY THE PROFIT OF RS.1,25,00,000/ - (I.E. 31.22% OF PURCHASES) WHICH WAS OFFERED BY THE ASSESSEE ON THE TOTAL VALUE OF ACCOMMODATION BI LLS OF RS.4,00,28,638/ - FOR THE YEAR UNDER CONSIDERATION I.E A.Y. 2009 - 10, WAS NOT TO BE ACCEPTED. ACCORDINGLY, ON THE BASIS OF THE AFORESAID OBSERVATIONS THE TRIBUNAL HAD DISMISSED THE APPEAL OF THE REVENUE. 6. ON A PERUSAL OF THE APPLICATION FILED BY TH E REVENUE BEFORE US, WE FIND , THAT THE REVENUE HAD ON THE BASIS OF A FRESH SET O F FACTS WHICH W ERE NEITHER DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES NOR WAS BROUGHT TO OUR NOTICE IN THE COURSE OF THE APPELLATE PROCEEDINGS , HAD TRIED TO BUILD UP A NEW CASE BEFORE US. ON THE BASIS OF THE AFORESAID FRESH SET OF FACTS AND FIGURES THE REVENUE HAD TRIED TO IMPRESS UPON US THAT WHILE DISPOSING OFF THE APPEAL OF THE REVENUE FOR THE YEAR UNDER CONSIDERATION I.E A.Y. 2009 - 10 , THE TRIBUNAL HAD PROCEEDED WITH ON MISCONCEIVED AND INCORRECT FACTS PERTAINING TO A.Y. 2010 - 11. WE ARE AF RAID THAT THE AFORESAID SET OF FRESH FACTS WHICH WERE NEI THER BORNE OUT FROM THE RECORDS BEFORE US IN THE COURSE OF THE APPELLATE PROCEEDINGS, NOR WAS ARGUED OR BROUGHT TO OUR NOTICE BY THE LD. D.R, CAN BE ALLOWED TO FORM A BASIS FOR SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL, IN THE GARB OF AN APPLICATION FILED UNDER SEC.254(2) OF THE ACT. AS A MATTER OF FACT, WE FIND THAT THE FA CTS WHICH HAVE BEEN P A G E | 4 M.A. 302/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.191/MUM/2016) DY. COMMISSIONER OF INCOME TAX, CIRCLE - 2 VS. SHRI VINOD H. NARSINGHANI B ROUGHT TO OUR NOTICE BY THE REVENUE WERE NEITHER BROUGHT ON RECORD DURING THE COUR SE OF THE APPELLATE PROCEEDINGS NOR ANY PAPER BOOK OR ANY DETAILS IN RESPECT THEREOF WAS FURNISHED BY THE REVENUE IN THE COURSE OF THE APPELLATE PROCEEDINGS. ACCORDINGLY, IN THE BACKDROP OF THE AFORESAID FACTUAL POSITION, WE ARE AFRAID THAT THE APPLICATION FILED BY THE REVENUE SEEKING A RECALL OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 191/MUM/2016, DATED 08.11.2017, DOES NOT MERIT ACCEPTANCE. 7. ACCORDINGLY, THE APPLICAT ION FILED BY THE REVENUE IS DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 4 . 12.2019 S D / - S D / - ( M. BALAGANESH ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 2 4 /12/2019 ROHIT, P.S. 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// (SR. PRIVATE SECRETARY) ITAT, MUMBAI