DHARMESH P. BHATT, MUMBAI V. ACIT 32(1), MUMBAI

MA 41/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5542 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 24-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIK
• Assessee Lawyers: S D PATHAK
• Keywords: Bogus purchase
• Section: 254(2)

Judgement Text

1 MA.NOS. 41 & 42/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NO.41 & 42/MUM/2019 (ARISING OUT OF ITA NOS.2182/MUM/2017 & 2841/MUM/20 18) (ASSESSMENT YEARS : 2010-11 & 2011-12) DHARMESH P.BHATT 5 NANDEEP CHS, LINK ROAD OLD MHB COLONY, BORIVALI(W) MUMBAI-400 093 PAN : ADXPB6335P VS ACIT - 32(1) PRATYAKSHAKAR BHAWAN BKC, BANDRA(E) MUMBAI-400 050 APPLICANT RESPONDENT APPLICANT BY S.D.PATHAK RESPONDENT BY KAVITA P. KAUSHIK DATE OF HEARING 27.09 .2019 DATE OF PRONOUNCEMENT 04.10 .2019 O R D ER PER G MANJUNATHA: AM THE ASSESSEE HAS FILED THESE TWO MISCELLANEOUS APPL ICATIONS AGAINST ORDER OF THE TRIBUNAL IN ITA NO.2182/MUM/20 17 AND ITA.NO.2841/MUM/2018 FOR AY 2010-11 AND 2011-12 AND REQUESTED TO 2 MA.NOS. 41 & 42/MUM/2019 RECALL ORDER OF THE TRIBUNAL, DATED 11/12/2018, FOR THE REASONS STATED IN MISCELLANEOUS APPLICATION FILED U/ 254(2) OF THE I. T.ACT, 1961. THE ASSESEE HAS NARRATED FACTS AND MISTAKES STATED TO B E APPARENT ON RECORD FROM THE ORDER OF THE TRIBUNAL FOR BOTH ASSE SSMENT YEARS. FOR THE SAKE OF BREVITY, THE CONTENTS OF MISCELLANEOUS APPL ICATION FILED FOR AY 2010-11 ARE REPRODUCED AS UNDER:- 1. THE PETITIONER IS AN INDIVIDUAL IN THE BUSINESS OF IRON AND STEEL TRADING. ALL THE PURCHASE WERE HAVING CORRESPONDING SALES. 2. THE ABOVE APPEAL OF THE PETITIONER CAME UP FOR H EARING FOR ASSESSMENT YEAR 2010-11 BEFORE HONORABLE TRIBUNAL, K BENCH MUMBAI O N 11/12/2018 AND HAS BEEN DISPOSED OF BY THE HONORABLE TRIBUNAL BY ORDER DATED,11/12/2018. THE APPLICANT BEG TO PRESENT THIS APPLICATION TO BRING BEFORE THE HONORABLE TRIBUNAL CERTAIN MATTERS AND RELEVANT FACTS WHICH, IT IS SUBMITTED, SHOW THAT THE ORDER OF THE HONORABLE TRIBUNAL CONTAINS CERTAIN CL ARIFICATION APPARENT FROM RECORD. 3. THE APPARENT CLARIFICATION THAT HAS CREPT IN THE ORDER OF THE TRIBUNAL IN PARA 2.8 ON PAGE NO-19 ' HOWEVER , IN SUCH TYPES OF CASE S AND SPECIFICALLY THE FACTS BEFORE US, WE ARE OF THE VIEW THAT THERE CANN OT BE ANY SALE WITHOUT PURCHASE, THEREFORE, ONLY OPTION AVAILABLE WITH US TO ESTIMATE THE PROFIT. TAKING SHELTER FROM THE AFOREMENTIONED JUDICIAL PRONOUNCEM ENTS, AND SINCE, THE ASSESSEE HAS ALREADY DECLARED GROSS PROFIT MORE THA N 9% IN BOTH THE ASSESSMENT YEARS, THERE FOR, WE DEEM IT APPROPRIATE TO ESTIMATE THE PROFIT @11% IN APPEAL. THUS, BOTH THE APPEALS OF THE ASSES SEE ARE PARTLY ALLOWED'. 4. THUS THE APPLICANT SUBMIT THAT THE INCOME FOR TH E YEAR ON ALLEGED PURCHASES FOR THE YEAR 2010-11 TO BE CHARGED AS UND ER: A}GROSS PROFIT ENVISAGED BY HONORABLE TRIBUNAL @11% B) GROSS PROFIT SHOWN BY APPELLANT @9.85 % C) ON RS. 2,78,00,109 @ 1.15% WHICH WORKS OUT RS. 3 ,19,701 D) OTHERWISE THE GP ON SUCH PURCHASES WORKS OUT @ 2 0.85%(9.85+11) WHICH IS UNFEASIBLE IN IRON & STEEL TRADING. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MISCE LLANEOUS APPLICATION FILED BY THE ASSESSEE ALONG WITH ORDER OF THE TRIBUNAL IN ITA NO.2182/MUM/2017 AND ITA NO.2841/MUM/2018, DATED 11 /12/2018 AND 3 MA.NOS. 41 & 42/MUM/2019 FOUND THAT THE ASSESSEE HAS FAILED TO MAKE OUT A PR IMA-FACIE CASE OF MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIB UNAL, DATED 11/12/2018. WE, FURTHER NOTED THAT THE TRIBUNAL HAS DISCUSSED THE ISSUE OF ALLEGED BOGUS PURCHASES AND BY FOLLOWING VARIOUS JUDICIAL PRECEDENTS, INCLUDING THE DECISION OF HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF CIT VS NIKUNJ EXIM ENTERPRISES PVT.LTD.(2015) 372 I TR 619 AND DIRECTED THE AO TO ESTIMATE 11% PROFIT ON ALLEGED BOGUS PURC HASES. WE, FURTHER NOTED THAT THE ASSESSEE HAS NOT DISPUTED FACT THAT THE TRIBUNAL HAS CONSIDERED ALL FACTS AND ESTIMATED 11% PROFIT, BUT THE ONLY GRIEVANCE OF THE ASSESSE IS THAT CONSIDERING NATURE OF BUSINESS OF THE ASSESSEE PROFIT ESTIMATED ON ALLEGED BOGUS PURCHASES, INCLUDING PRO FIT ALREADY DECLARED FOR THE YEAR IS WORKS OUT TO 20.85%, WHICH IS UNREA SONABLE AND EXCESSIVE IN THIS KIND OF BUSINESS. EXCEPT THIS, TH E ASSESSEE HAS FAILED TO MAKE OUT ANY CASE OF MISTAKES APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL, WHICH COULD BE RECTIFIED U/S 254(2) OF TH E I.T.ACT, 1961, AT BEST, IT COULD BE TERMED THAT THE ASSESEE IS REQUESTED FO R REVIEW OF DECISION RENDERED BY THE TRIBUNAL IN THE GIVEN FACTS AND CIR CUMSTANCES OF THE CASE, WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE I. T.ACT, 1961. WE, THEREFORE, DISMISSED MISCELLANEOUS APPLICATION FILE D BY THE ASSESEE FOR BOTH ASSESSMENT YEARS. 4 MA.NOS. 41 & 42/MUM/2019 3. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSE FOR BOTH ASSESSMENT YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.10.20 19. SD/- SD/- MAHAVIR SINGH G. MANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 04 .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//