ENCRICH RD INFRAPROJECTS P.LTD, MUMBAI V. ITO 4(1)(4), MUMBAI

MA 37/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9214 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 22-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI BEFORE SHRI MAHAVIR SINGH , VICE PRESIDENT AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO. 37/MUM/2019 (OUT OF ITA NO. 3219/MUM/2017) : A.Y : 2012 - 13 ENRICH RD INFRAPROJECTS PVT. LTD., 30 GUPAL BHAVAN, 2 ND FLOOR, 199 PRINCESS STREET, MUMBAI 400 002. PAN : AADCR7020F (APP LICANT ) VS. INCOME TAX OFFICER 4(1)(4), MUMBAI. (RESPONDENT) APPLICANT BY : SHRI NISHIT GANDHI RESPONDENT BY : SHRI SUSHIL KUMAR MISHRA DATE OF HEARING : 11/12/2020 DATE OF PRONOUNCEMENT : 11 /01/2021 O R D E R PER RAJESH KUMAR , AM BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS PLEADED BEFORE THE BENCH THAT WHILE PASSING THE ORDER IN ITA NO. 3219/MUM/2017 FOR ASSESSMENT YEAR 2012 - 13 DATED 06.08.2018, THE TRIBUNAL HAS GIVEN FINDINGS ON AN ISSUE WHICH WAS NOT RAISED IN T HE GROUNDS OF APPEAL BY THE REVENUE . 2. THE LEARNED AUTHORISED REPRESENTATIVE (IN SHORT A R) SUBMITTED BEFORE THE BENCH THAT IN PARA 6 OF THE TRIBUNAL ORDER, THE BENCH HAS GIVEN A DIRECTION TO THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.1,26,85,52 5/ - AND FURTHER DIRECTED THE ASSESSING OFFICER TO MAKE ADDITION OF 12.5% OF THE BOGUS 2 MA NO. 37/MUM/2019 ENRICH RD INFRAPROJECTS PVT. LTD. PURCHASES WHICH WAS NOT THE GROUND BEFORE THE TRIBUNAL . THE LEARNED REPRESENTATIVE FOR THE ASSESSEE DREW OUR ATTENTION TO THE GROUNDS OF APPEAL RAISED BY THE REVENUE. T HEREFORE, T HE LEARNED REPRESENTATIVE FURTHER PRAYED THAT THE OPERATIVE PART OF THE TRIBUNAL DIRECTION AS CONTAINED IN PARA 6 MAY KINDLY BE RECTIFIED AS THE SAME IS A MISTAKE APPARENT ON THE FACE OF ORDER AS THE TRIBUNAL HAS GIVEN DIRECTION TO ASSESSING OFF ICER TO APPLY @ 12.5% BOGUS PURCHASES WHICH WAS NOT A GROUND RAISED BY THE REVENUE. 3. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED BEFORE THE BENCH THAT THE ORDER PASSED BY THE TRIBUNAL IS CORRECT AND IS NOT CONTAINING ANY ERROR OF FACT TO WHICH PROVISIONS OF SECTION 254( 2 ) OF THE ACT COULD BE ATTRACTED. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE MAY KINDLY BE DISMISSED. 4. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT THE REVENUE HAS RA ISED GROUND AGAINST DELETION OF ADDITION BY THE CIT(A) WITHOUT APPRECIATING THE FACTS OF THE CASE AND THE FACTS POINTED OUT BY THE ASSESSING OFFICER IN THE BOOKS OF ACCOUNT, WHEREIN BOGUS PURCHASES FROM HAWALA PARTIES HAVE BEEN RECORDED. THE SAID GROUND I S REPRODUCED HEREUNDER: 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,26,85,525/ - (BEING 8% OF THE TOTAL GROSS RECEIPTS DURING THE YEAR) WITHOUT APPRECIATING THE FACTS THAT THE ASSESSING OFFICER HAD POINTED OUT THE DEFECT IN THE BOOKS OF ACCOUNTS WHEREIN BOGUS PURCHASES FROM TWO ACCOMMODATING PARTIES VIZ. M/S. TUFF ENTERPRISES AND M/S. DPK ELECTROSALES INDIA PVT. LTD. HAVE BEEN RECORDED. 5. WE FURTHER NOTE THAT THE REVENUE HAS CHALLENGED THE DELETION OF ADDITION ON THE GROUND THAT THE CIT(A) HAS NOT APPRECIATED THE FACTS OF THE CASE IN THE RIGHT PERSPECTIVE AND HAS CHALLENGED THE ORDER ON ACCOUNT OF 3 MA NO. 37/MUM/2019 ENRICH RD INFRAPROJECTS PVT. LTD. REVERSING THE REJECTION OF BOOKS OF ACCOUNT UNDER SECTION 14 5( 3 ) OF THE ACT AND NOWHERE THE QUANTUM OF ADDITION HAS BEEN CHALLENGED. HOWEVER, IN PARA 6 OF THE IMPUGNED ORDER OF THE TRIBUNAL WE HAVE ERRONEOUSLY GIVEN A DIRECTION TO ADD 12.5% OF THE TOTAL BOGUS PURCHASES. PARA 6 AND 7 OF THE TRIBUNAL ORDER IS REPRODUCED AS UNDER : - 6. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF CO - ORDINATE BENCH AS ABOVE, DIRECT THE AO TO DELETE THE ADDITION OF RS.1,26,85,525/ - , AND INSTEAD MAKE ADDITION @ 12.5% ON THE AMOUNT OF TOTAL BOGUS PURCHASES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE INCLINED TO RECTIFY PARA 6 AND 7 OF OUR SAID ORDER, WHICH MAY BE READ AS UNDER : - 6. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF CO - ORDINATE BENCH AS ABOVE, DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.1,26,85,525/ - . 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. THE ORDER DATED 06.08.2018 STANDS MODIFIED TO THE EXTENT AS ABOVE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 1 T H JANUARY, 202 1. SD/ - SD/ - (MAHAVIR SINGH) VICE PRESIDENT ( RAJESH KUMAR ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 1 T H JANUARY, 20 21 *SSL* 4 MA NO. 37/MUM/2019 ENRICH RD INFRAPROJECTS PVT. LTD. COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, E BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI