SURESH R SHAH, V. ITO 24(2)(2),

MA 709/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0629 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2003-2004
• Appeal Filed On: 23-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Keywords: Bogus purchase
• Section: 40A(3)

Judgement Text

MA NO. 709/MUM/2012 SHRI SURESH R. SHAH - 1 - IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI .. , ! ! ! ! ' #$, % BEFORE SHRI I.P. BANSAL, JM, AND RAJENDRA SINGH, AM &!&! !' / MA NO. 709 /MUM/2012 ARISING OUT OF ITA 3012/MUM/2007 ( ' ( !)( ' ( !)( ' ( !)( ' ( !)( / / / / ASSESSMENT YEAR : (2003-04) SHRI SURESH R. SHAH C-14/14, BHADRAN NAGAR S.V. ROAD, MALAD (W) MUMBAI 400 097. ' ' ' ' / VS. INCOME TAX OFFICER -24(2) (2), C-13, R. NO. 604 PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI 400 051. ( +, / // / APPELLANT ) .. ( -.+, / RESPONDENT ) +, / 0 / APPELLANT BY : SHRI VIPUL JOSHI -.+, / 0 / RESPONDENT BY : SHRI D.K. SINHA '! / 1% / // / DATE OF HEARING : 28-6-2013 23) / 1% / DATE OF PRONOUNCEMENT : 03-7-2013 4 / O R D E R PER RAJENDRA SINGH THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE REQUESTING FOR AMENDMENT OF THE ORDER OF THE TRIBU NAL DATED 7.5.2010 IN ITA NO. 3012/MUM/07. THE MISTAKE POINTED OUT IS IN RELATION TO THE OBSERVATIONS OF TRIBUNAL REGARDING FILING OF CONFIR MATIONS IN RESPECT OF PURCHASES. MA NO. 709/MUM/2012 SHRI SURESH R. SHAH - 2 - 2. THE FACTS IN BRIEF ARE THAT IN THE ASSESSMENT PR OCEEDINGS THE AO HAD MADE ADDITION OF RS. 34,46,495/- ON ACCOUNT OF ESTI MATED NET PROFIT AND ADDITION OF RS. 36,65,423/- ON ACCOUNT OF ALLEGED B OGUS PURCHASES. THE ADDTION ON ACCOUNT OF ALLEGED BOGUS PURCHASES HAD B EEN MADE ON THE GROUND THAT SOME OF THE PARTIES HAD NOT RESPONDED T O THE LETTERS ISSUED BY AO U/S 133 (6) OF THE IT ACT. BEFORE CIT (A) THE AS SESSEE FILED CONFIRMATIONS IN ALL CASES EXCEPT IN CASE OF FOUR PARTIES AND THE AO IN THE REMAND REPORT DATED 18.1.2007 MENTIONED THAT THE PURCHASES FROM T HE ABOVE FOUR PARTIES COULD NOT BE VERIFIED. THE ASSESSEE THEREAFTER BEFO RE CIT (A) POINTED OUT THAT THE ASSESSEE HAD FILED CONFIRMATION IN RESPECT OF A BOVE FOUR PARTIES BEFORE THE AO ON 23.1.2007 AND, THEREAFTER, FRESH REMAND R EPORT HAD BEEN OBTAINED BY CIT(A). AFTER CONSIDERING THE REMAND, C IT(A) DELETED THE ADDITION ON ACCOUNT OF ALLEGED BOGUS PURCHASES AND ESTIMATED NET PROFIT AT THE RATE OF 30% OF SALES AT RS. 30,00,030/-. THE TR IBUNAL IN THE ORDER DATED 7.5.2010 IN PARA 8 OBSERVED THAT THE ASSESSEE HAD F URNISHED CONFIRMATIONS FROM ALL BUT FOUR PARTIES FROM WHOM PURCHASES WERE MADE. HOWEVER THE TRIBUNAL NOTED THAT PAYMENTS FOR MANY OF THE PURCHA SES HAD NOT BEEN MADE BY ACCOUNT PAYEE CHEQUES EVEN IN CASE OF PAYME NTS EXCEEDING RS. 20,000/-. THEREFORE, EVEN IF THE PURCHASES WERE HE LD TO BE GENUINE, THE DISALLOWNACE U/S 40A(3) WAS CALLED FOR. THE TRIBUNA L, THEREFORE, REMITTED THE ORDER TO THE FILE OF AO FOR FRESH ADJUDICATION OF T HE DISALLOWANCE OF BOGUS PURCHASES AFTER NECESSARY EXAMINATION AND AFTER ALL OWING OPPORTUNITY OF HEARING TO THE ASSESSEE. AGGRIEVED BY THE DECISION, THE ASSESSEE HAS FILED THE MISCELLANEOUS APPLICATION POINTING OUT APPARENT MIS TAKE IN THE ORDER OF TRIBUNAL TO THE EFFECT THAT CONFIRMATIONS FROM FOUR PARTIES HAD NOT BEEN FILED. 3. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECO RDS AND CONSIDERED MATTER CAREFULLY. WE FIND THAT THE TRIBUNAL HAD RES TORED THE ENTIRE ISSUE OF DISALLOWANCE OF BOGUS PURCHASES TO THE FILE OF AO F OR FRESH ADJUDICATION AS APPLICATION OF PROVISIONS OF SECTION 40A(3) WERE NO T CONSIDERED IN THE MA NO. 709/MUM/2012 SHRI SURESH R. SHAH - 3 - ORIGINAL ASSESSMENT. IN THE FRESH ASSESSMENT PROCEE DINGS, THE ASSESSEE WILL BE FREE TO FILE ALL DETAILS INCLUDING THE CONFIRMAT IONS AND OTHER EVIDENCE ON THE ISSUE, WHICH ARE REQUIRED TO BE CONSIDERED BY T HE AO IN THE FRESH PROCEEDINGS. THE TRIBUNAL HAD NOT DECIDED THE ISSUE AND HAD ONLY RESTORED IT TO THE FILE OF THE AO. THEREFORE, THE OBSERVATIO N OF TRIBUNAL THAT CONFIRMATIONS FROM FOUR PARTIES HAD NOT BEEN FILED HAS NO IMPACT ON THE DECISION TAKEN. WE, THERFORE, SEE NO APPARENT MISTA KE IN THE ORDER OF TRIBUNAL ON THIS ACCOUNT. THERE IS THUS NO MERIT IN THE MISCELLANEIOUS APPLICATION FILED BY THE ASSESSEE AND THE SAME IS R EJECTED. 4. IN THE RESULT MISCELLANEIOUS APPLICATION OF THE ASSESSEE STANDS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E 3/7 /2013 SD/- SD/- ( I.P. BANSAL) (RAJENDRA SINGH) / JUDICIAL MEMBER % / ACCOUNTANT MEMBER S.K. SR. P.S. MUMBAI, DATED 3/7/2013 4 / -1#& H&)1 4 / -1#& H&)1 4 / -1#& H&)1 4 / -1#& H&)1/ COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. I () / THE CIT(A)- 4. I / CIT 5. &!LM -1' , , / DR, ITAT, MUMBAI 6. MN( O / GUARD FILE. 4 4 4 4' ' ' ' / BY ORDER, .&1 -1 //TRUE COPY// P PP P/ // /$ $ $ $ ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI