SHANTIVIJAY JEWELES LTD, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX RANGE 8(3), MUMBAI

MA 85/MUM/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5889 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 23-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH KUMAR YADAV
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH , JM M A NO. 85/ MUM/20 17 (ARISING OUT OF ITANO.1045/MUM/2016) ( ASSESSMENT YEAR : 2011 - 12 ) M/S. SHANTIVIJAY JEWELS LTD., G - 37, GEMS AND JEWELLERY COMPLEX III, SEEPZ ANDHERI EAST MUMBAI 400 096 VS. DCIT - RG (3), MUMBAI PAN/GIR NO. AAFCS8914F APPELLANT ) .. RESPONDENT ) ASSESSEE BY REVENUE BY SHRI RAJESH KUMAR YADAV DATE OF HEARING 27 / 10 /201 7 DATE OF PRONOUNCEME NT 27 / 10 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS M.A. FILED BY ASSESSEE AROSE OUT OF ORDER PASSED BY THE TRIBUNAL DATED 11/01/2017 IN ITA NO.1045/MUM/2016. 2. IT WAS CONTENDED BY LEARNED AR THAT HON'BLE ITAT APPEARS TO HAVE PROCEED ED ON THE MISCONCEPTION THAT THE ASSESSEE DID NOT PRODUCE THE VENDORS BEFORE THE AO AND THAT THEY HAVE NOT CONFIRMED THE TRANSACTIONS ENTERED INTO WITH THE ASSESSEE . THIS IS EVIDENT FROM PARAGRAPH 7 OF THE ORDER IT HAS BEEN HELD AS UNDER: REGARDING THE AR GUMENTS RELATING TO THE ISSUE OF MAKING THE ENTIRE ADDITION OF BOGUS PURCHASES, WE FIND THAT, CONSIDERING THE PRIMARY STATEMENT GIVEN BY SHRI DHARMICHAND JAIN AND THE FAILURE ON THE PART OF THE ASSESSEE TO PRODUCE THE SAID PARTIES FOR EXAMINATION TO M A NO. 85/MUM/2017 M/S. SHANTIVIJAY JEWELS PVT.LTD., 2 THE AO (EMPHASIS ADDED) AND ALSO THE DECISION IN THE CASE OF NIKUNJ EXIMP ENTERPRISES (SUPRA) WE FIND THE DECISION OF THE CIT(A) ON RESTRICTING THE ADDITION TO A PORTION OF THE BOGUS PURCHASES IS JUSTIFIED. 3. IN VIEW OF THE ABOVE, IT WAS SUBMITTED THAT THIS FI NDING IS FACTUALLY INCORRECT BECAUSE IT IS NOTED BY THE CIT ( A ) THAT THE SAID 3 VENDORS NOT ONLY APPEARED BEFORE THE LEARNED AO DURING THE REMAND PROCEEDINGS BUT ALSO CONFIRMED THAT THEY INDEED ENTERED INTO THE TRANSACTIONS WITH THE ASSESSEE. THIS FINDING O F THE CI TA IS RECORDED AT PAGE 4 OF THE CIT(APPEALS) OF HIS ORDER DATED 23 RD APRIL 2014 - PARA D.I WHICH STATES AS UNDER: THE ASSESSING OFFICER WAS ASKED TO SUBMIT REMAND REPORT. IN THE REMAND PROCEEDINGS THE ASSESSEE PRODUCED ALL THE AFORESAID THREE PARTIE S FROM WHOM THE ASSESSEE CLAIMED TO HAVE MADE PURCHASES. THESE PARTIES CONFIRMED HAVING MADE SALES TO THE ASSESSEE. 4. ACCORDINGLY, IT WAS ARGUED THAT ORDER PASSED BY THE TRIBUNAL SHOULD BE RECALLED. 5. ON THE OTHER HAND, LEARNED DR CONTENDED THAT THERE I S NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 6. WE HAVE CAREFULLY GONE THROUGH THE MISCELLANEOUS PETITION AND ORDER PASSED BY THE TRIBUNAL AS WELL AS ORDERS OF THE LOWER AUTHORITIES. WE FOUND THAT TRIBUNAL HAVE CONFIRMED THE ADDITION OF 12.5% IN RESPECT OF B OGUS PURCHASE AFTER OBSERVING THAT THERE WAS FAILURE ON THE PART OF THE ASSESSEE TO PRODUCE SUCH BOGUS PARTIES FOR EXAMINATION TO THE AO. HOWEVER, THE CIT(A) IN HIS ORDER HAS CATEGORICALLY NOTED THAT THE SAID THREE VENDORS NOT ONLY APPEARED BEFORE THE AO D URING THE REMAND M A NO. 85/MUM/2017 M/S. SHANTIVIJAY JEWELS PVT.LTD., 3 PROCEEDINGS BUT ALSO CONFIRMED THAT THEY INDEED ENTERED INTO THE TRANSACTION WITH THE ASSESSEE. THIS FINDING OF CIT(A) IS RECORDED AT PAGE 4 OF THE CIT(A) ORDER DATED 23/04/2014. IN VIEW OF THIS FINDING OF CIT(A), THE OBSERVATION MADE BY T HE TRIBUNAL AND CONFIRMING THE ADDITION OF 12.5% OF BOGUS PURCHASE AMOUNTS TO MISTAKE APPARENT FROM RECORD. ACCORDINGLY, WE RECALL THE ORDER PASSED BY THE TRIBUNAL DATED 11/07/2017 AND REGISTRY IS DIRECTED TO FIX THE SAME FOR HEARING AFRESH BY REGULAR BENCH. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, MA FILED BY THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 10 /2017 S D/ - ( AMARJIT SINGH ) S D/ - ( R.C.SHARMA ) JUDICI AL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 27 / 10 /201 7 KARUNA 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//