STULZ CHSPL (INDIA) PRIVATE LIMITED , MUMBAI V. DEPUTY COMMISSIONER OF INCOMETAX 7(2), MUMBAI

MA 799/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6651 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 20-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Bogus purchase
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE S HRI R.C. SHARMA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 799 / MUM /2017 ( ARISING OUT OF ITA NO. 1514 /MUM /201 5 ) ( ASSESSMENT YEAR : 2009 10 ) & M.A. NO. 800/MUM/2017 ( ARISING OUT OF ITA NO. 1515/MUM/2015) (ASSESSMENT YEAR : 2010 11) M/S STULZ CHSPL (INDIA) PRIVATE LIMITED, 6, JAGRUTI INDUSTRIAL ESTATE, MOGUL LANE, MAHIM (WEST), MUMBAI - 400016 PAN: AABCC5320P VS. THE DCIT 7(2), MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH RI BHUPENDRA SHAH (AR) REVENUE BY : SHRI M.C. OMI NINGSHEN (DR) DATE OF HEARING: 06/04 /201 8 DATE OF PRONOUNCEMENT: 14 / 0 5 /201 8 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PRESENT MISC ELLANEOUS APPLICATIONS IN RESPECT OF ORDER DATED 26.04.2017 PASSED BY THE E BENCH OF THE ITAT MUMBAI PASSED IN THE ASSESSEES CASE ITA NO 1514/M/2015 AND ITA NO 1515/M/2015 PERTAINING TO THE ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 RESPECTIVELY. 2. THE LD. COUNSEL SUBMITTED BEFORE US THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. WHE N THE APPELLANT/ASSESSEE APPROACHED T HE ASSESSING OFFICER FOR GIVING EFFECT TO THE ABOVE SAID ORDER , THE AO TOLD THAT SINCE PARA NO 4 OF THE ITAT ORDER IS NOT CL EAR, THE ISSUE OF PURCHASES IN QUESTION IS 2 M.A. NO S . 799 & 800 /MUM/2017 ASSESSMENT Y EAR S : 2009 - 10 AND 2010 - 11 REQUIRED TO BE ASSESSED AGAIN ON THE SAME LINE AS WAS DONE IN THE ASSESSMENT PROCEEDINGS. 3. THE LD. DEPARTMENTAL REPRESENTATIVE OPPOSED THE PRAYER OF THE ASSESSEE/APPLICANT ON THE GROUND THAT THERE IS NO APPARENT MISTAKE OR AMBIGUITY IN THE ORDER PASSED BY THE TRIBUNAL. 4. WE HAVE PERUSED THE ORDER DATED 26.04.2017 PASSED BY THE E BENCH OF THE TRIBUNAL. IN THE PRESENT CASE THE AO DETERMINED THE TOTAL AMOUNTS OF BOGUS PURCHASES MADE BY THE ASSESSEE DURING THE AS SESSMENT YEARS 2009 - 10 AND 2010 - 11 AND MADE ADDITION S OF THE ENTIRE AMOUNTS TO THE INCOME OF THE ASSESSEE OF THE RESPECTIVE ASSESSMENT YEARS. I N THE SECOND APPEAL, THE TRIBUNAL SET ASIDE THE ORDERS OF THE LD. CIT(A) PASSED IN BOTH THE ASSESSMENT YEARS AND RESTRICTED THE ADDITIONS TO 12.5% OF THE TOTAL AMOUNT S OF BOGUS PURCHASES DETERMINED BY THE AO PERTAINING TO BOTH THE ASSESSMENT YEARS. 5. SO FAR AS THE PAYMENT OF VAT IS CONCERNED SINCE, THE LD. COUNSEL HAS CLAIMED THAT THE ASSESSEE HAS ALREADY PAID TH E VAT ON THE ENTIRE AMOUNT OF PURCHASES IN QUESTION , THE BENCH HAS DIRECTED THE AO TO VERIFY THE CLAIM OF THE ASSESSEE AND DECIDE THIS ISSUE AFRESH HOLDING THAT THE ASSESSEE SHOULD NOT BE PUT TO LOSS ON THIS ACCOUNT. HENCE , WE DIRECT THE AO TO MAKE ADDITIO N OF 12.5% OF THE BOGUS PURCHASES MADE BY THE ASSESSEE IN BOTH THE YEARS , TO VERIFY AS TO WHETHER THE ASSESSEE HAS PAID THE VAT ON SUCH BOGUS PURCHASES AND TO GIVE BENEFIT OF THE SAME IN CASE THE ASSESSEE HAS ALREADY PAID THE VAT. IN THE RESULT THE TOTAL A DDITION OF THE INCOME TO BE UPHELD BY WOULD BE 12.5% OF THE BOGUS PURCHASES LESS VAT PAID ON SUCH BOGUS PURCHASES. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE FOR A SSESSMENT YEAR S 2009 - 2010 AND 2010 - 11 ARE TREATED AS ALLOWED. 3 M.A. NO S . 799 & 800 /MUM/2017 ASSESSMENT Y EAR S : 2009 - 10 AND 2010 - 11 ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH MAY , 2018 . SD/ - SD/ - ( R.C. SHARMA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 14 / 0 5 / 2018 ALINDRA, PS / 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// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI