CHORON DIAMONDS (INDIA) PRIVATE LIMITED , MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 5(1)(2), MUMBAI

MA 886/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6309 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 12-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OMI NINGSHEN
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER M.A.NOS. 884 TO 887/ MUM /2017 (ARISING OUT OF ITA.NO. 5868 TO 5871/MUM/2016 (A. YS : 2008 - 09, 2010 - 11, 2011 - 12 AND 2013 - 14 ) ) M/S. CHORON DIAMOND (I) PVT. LTD. EC - 1160, BHARAT DIAMOND BOURSE, BKC, MUMBAI 400 051 PAN NO: AABCC 5715 G V. ASST. COMMISSIONER OF INCOME - TAX 5(1)(2) ROOM NO. 568, 5 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD , MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRATIK JAIN REVENUE BY : SHRI OMI NINGSHEN DATE OF HEARING : 16.02.2018 DATE OF PRONOUNCEMENT : 06 .03.2018 O R D E R PER C. N. PRASAD (JM) 1. THROUGH THESE MISCELLANEOUS APPLICATIONS THE ASSESSEE SUBMITTED THAT THERE ARE CERTAIN MISTAKE APPARENT ON RECORD IN ARRIVING AT THE CONCLUSION AT PARAGRAPH S NO.10 AND 19 OF THE COMMON ORDER THAT THE GROUNDS RAISED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2008 - 09, 2010 - 11, 2011 - 12 AND 2013 - 14 ARE DISMISSED . 2 M.A.NOS. 884 TO 887/MUM/2017 M/S. CHORON DIAMOND (I) PVT. LTD. 2. IT IS THE SUBMISSION OF THE ASSESSEE THAT IN THE ABOVE APPEALS THE LD.CIT(A) HAD RESTRICTED THE DISALLOWANCE ON THE ALLEGED BOGUS PURCHASES AT 3% AND THE TRIBUNAL IN PARAGRAPH NO.10 DIRECTED THE ASSESSI NG OFFICER TO ESTIMATE THE PROFIT ELEMENT AT 2% F ROM THE PURCHASES TREATED AS NON - GENUINE. HOWEVER, THE TRIBUNAL BY MISTAKE OBSERVED THAT THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED INSTEAD OF PARTLY ALLOWED IN PARAGRAPHS NO. 10 AND 19 OF THE ORDER . THEREFORE, IT IS SUBMITTED THAT SINCE THESE ARE MISTAKE APPARENT ON RECORD THE HON'BLE TRIBUNAL MAY BE PLEASED TO RECTIFY THE ORDER BY REPLACING THE WORD DISMISSED WITH PARTLY ALLOWED . 3. ON THE OTHER HAND , THE LD. DR SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD AND THE TRIBUNAL HAS CONSCIOUSLY TAKEN A DECISION TO DISMISS THE GROUNDS RAISED BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE TRIBUNAL ORDER. AS RIGHTLY POINTED OUT BY THE ASSES SEE IN ITS MISCELLANEOUS APPLICATIONS THAT THE DISALLOWANCE ON ACCOUNT OF ALLEGED BOGUS PURCHASES HAS BEEN RESTRICTED BY THE LD.CIT(A) TO 3% AND THE TRIBUNAL RESTRICTED THE DISALLOWANCE TO 2%. I N OTHER WORDS, THE TRIBUNAL DIRECTED THE ASSESSING OFFICER TO ESTIMATE THE PROFIT ELEMENT FROM SUCH PURCHASES AT 2%. HOWEVER, IN PARAGRAPH NO.10 OF THE TRIBUNAL ORDER IT IS OBSERVED THAT THE 3 M.A.NOS. 884 TO 887/MUM/2017 M/S. CHORON DIAMOND (I) PVT. LTD. GROUNDS RAISED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2008 - 09, 2010 - 11, 2011 - 12 AND 2013 - 14 ON THIS ISSUE ARE DISMISSED. SIMILARLY, IN PARAGRAPH NO .19 IT WAS OBSERVED THAT APPEALS OF THE ASSESSEE ARE DISMISSED FOR THE ASSESSMENT YEARS 2010 - 11 AND 2011 - 12 . WE OBSERVED THAT THIS IS ONLY ON ACCOUNT OF OVERSIGHT IT HAS BEE N MENTIONED THAT THE GROUNDS RAISED BY THE ASSESSEE FOR THESE ASSESSMENT YEARS ARE DISMISSED AND IT S HOULD HAVE BEEN PARTLY ALLOWED. AS THIS IS A MISTAKE APPARENT ON RECORD, WE MODIFY OUR ORDER AND THE LAST T WO SENTENCES OF THE PARAGRAPH NO . 10 AND PARAGR APH NO.19 OF THE ORDER PASSED BY THE TRIBUNAL BY ITS COMMON ORDER DATED 30.10.2017 SHALL BE REPLACED WITH THE FOLLOWING: - 10. IN THE CIRCUMSTANCE WE DIRECT THE ASSESSING OFFICER TO ESTIMATE THE PROFIT ELEMENT FROM THE PURCHASES TREATED AS NON - GENUINE AT THE R ATE OF 2 % UNIFORMLY FOR ALL THE ASSESSMENT YEARS 2007 - 08, 2008 - 09, 2010 - 11, 2011 - 12 AND 2013 - 14. THE GROUNDS RAISED BY THE REVENUE FOR THE ASSESSMENT YEARS 2007 - 08, 2008 - 09 AND 2011 - 12 ON THIS ISSUE ARE DISMISSED A ND THE GROUNDS RAISED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2007 - 08 , 2008 - 09, 2010 - 11, 2011 - 12 AND 2013 - 14 ON THIS ISSUE ARE PARTLY ALLOWED. 19. IN THE RESULT, APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2007 - 08, 200 8 - 09, 2010 - 11, 2011 - 12 4 M.A.NOS. 884 TO 887/MUM/2017 M/S. CHORON DIAMOND (I) PVT. LTD. AND 2 013 - 14 ARE PARTLY ALLOWED AND REVENUE APPEALS FOR THE ASSESSMENT YEARS 2007 - 08, 2008 - 09 AND 2011 - 12 ARE DISMISSED. 5. THE ORDER OF THE TRIBUNAL IS MODIFIED AS ABOVE. 6. IN THE RESULT, MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 06 TH MARCH , 2018 . SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 06 / 03 / 201 8 GIRIDHAR , SPS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM