ITO 15(3)(1), MUMBAI v. SHREE GAUTAMSWAMI STEELS, MUMBAI

ITA 5141/MUM/2011 | 2008-2009
Pronouncement Date: 10-07-2013 | Result: Dismissed

Appeal Details

RSA Number 514119914 RSA 2011
Assessee PAN ABDFS0046E
Bench Mumbai
Appeal Number ITA 5141/MUM/2011
Duration Of Justice 2 year(s) 6 day(s)
Appellant ITO 15(3)(1), MUMBAI
Respondent SHREE GAUTAMSWAMI STEELS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 10-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 10-07-2013
Date Of Final Hearing 26-06-2013
Next Hearing Date 26-06-2013
Assessment Year 2008-2009
Appeal Filed On 04-07-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH M UMBAI . . . . '# '# '# '# $ $ $ $ % % % % BEFORE SHRI R.K. GUPTA JM AND SHRI N. K. BILLAIYA AM /. I.T.A. NO.5141/MUM/2011 ( & & & & '& '& '& '& / ASSESSMENT YEAR: 2008-2009) INCOME TAX OFFICER 15(3)(1) ROOM NO.106 MATRU MANDIR 1 ST FLOOR TARDEO ROAD MUMBAI- 400007. / VS. M/S. SHREE GAUTAMSWAMI STEELS 201 HINDUSTAN KOHINOOR COMPLEX L.B.S. MARG VIKHROLI (WEST) MUMBAI-83. ( $ /. )* /. PAN/GIR NO. : ABDFS 0046 E ( (+ / APPELLANT ) : ( -(+ / RESPONDENT ) (+ . / APPELLANT BY : SMT. JOTNILAKSHMI NAYAK -(+ . / RESPONDENT BY : SHRI VIJAY MEHTA 0$ / DATE OF HEARING : 26.06. 2013 23' 0$ /DATE OF PRONOUNCEMENT : 10. 07 .2013 4 4 4 4 / O R D E R PER : R.K. GUPTA JM THIS APPEAL FILED BY THE DEPARTMENT AGAINST THE OR DER OF LD. CIT(A) -26 DATED 20.04.2011 RELATING TO THE ASSESSMENT YEAR 2008-09. 2. THE DEPARTMENT IS OBJECTING DELETING THE ADDITIO N OF RS. 15 60 475/- MADE BY THE AO ON ACCOUNT OF BOGUS PURCHASES. THE DEPARTMENT HA S ALSO RAISED A GROUND THAT LD. CIT(A) HAS ACCEPTED ADDITIONAL EVIDENCE IN VIOLATIO N OF RULE 46A OF THE ACT. 2 ITA 5141M 2011 (AY-2008-09) ITO VS. M/S SHREE GAUTAMSWAMI STEELS LTD. 3. DURING THE ASSESSMENT PROCEEDING THE AO NOTICED THAT THE ASSESSEE SHOWN PURCHASE OF RS. 15 60 475. THE AO WANTED TO VERIFY THE PURC HASES THEREFORE HE ISSUED NOTICE TO THE PARTIES. HOWEVER THE NOTICE RETURNED BACK WHICH WAS SENT ON THE GIVEN ADDRESS WITH REMARK ADDRESS NOT TRACEABLE HENCE RETURNED. IN REPLY TO THE SHOW CAUSE THE ASSESSEE SUBMITTED PURCHASE BILL LEDGER ACCOUNT PAYMENT ACCOUNT ETC. SINCE THE ASSESSEE COULD NOT PRODUCED THE PARTIES THEREFORE THE AO WAS OF THE V IEW THAT THE PURCHASE SHOWN BY ASSESSEE ARE BOGUS. BY REJECTING THE EXPLANATION OF THE ASSE SSEE THE AO ASSIGNED SOME REASONS ALSO IN HIS ORDER. ACCORDINGLY HE MADE ADDITION OF RS. 15 60 475 U/S 69(C) OF THE ACT. IT WAS SUBMITTED BEFORE THE CIT(A) THAT AO FAILED TO APPRE CIATE THE EVIDENCE ON RECORD. IT WAS FURTHER SUBMITTED THAT THE SALE SHOWN AGAINST THOSE PURCHASE HAVE BEEN ACCEPTED BY HIMSELF. THE AO HAS DRAWN ADVERSE INTERFERENCE AGAINST THE A SSESSEE ONLY ON THE BASIS OF NON-RECEIPT OF LETTER OR NOTICES SENT TO THE RESPECTIVE PARTIES . IT WAS EXPLAINED THAT THE ASSESSEE IS A TRADING CONCERN DEALING IN TMT STEEL AND UNLESS PUR CHASES ARE MADE THERE CANNOT BE ANY SALE. IN SUPPORT OF THE CONTENTION OF THE ASSESSEE THE LD. AR SUBMITTED THE COPY OF PURCHASE AND CORRESPONDING SALES BILLS BANK STATEMENT REFL ECTING THE PAYMENT THROUGH ACCOUNT PAYEE CHEQUE COPY OF LETTER ISSUED BY M/S. RATHI I SPAT STEEL PRODUCTS AND RATJI RE- ROLLER(I) LTD. FOR SUBMITTING C FORM ISSUED BY SA LES TAX DEPARTMENT IN THE FAVOUR OF PURCHASE PARTY. THE REGISTRATION OF THESE TWO PARTI ES WITH MAHARASTRA SALES TAX DEPARTMENT WAS ALSO FILED. THE ASSESSEE HAS SUBMITTED THE COP Y OF THE DELIVERY CHALLAN OCTROI RECEIPTS BILLS OF TRANSPORTERS WEIGHT SALES RECEIPTS ETC. RE LIANCE WAS PLACED ON VARIOUS CASE LAWS MENTIONED IN THE ORDER OF THE CIT IN PARA-4 OF HIS ORDER. 4. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD THE CIT(A) FOUND THAT ONUS LAY UPON THE ASSESSEE HAVE DULY DIS CHARGED. ALL THE DETAILS FILED BEFORE THE AO AS WELL AS BEFORE HIM PROVE BEYOND DOUBT THAT T HERE WERE GENUINE PURCHASES ACCORDINGLY HE DELETED THE ADDITION MADE BY AO. NOW THE DEPARTMENT IS IN APPEAL HEREIN BEFORE THE TRIBUNAL. 3 ITA 5141M 2011 (AY-2008-09) ITO VS. M/S SHREE GAUTAMSWAMI STEELS LTD. 5. THE LD. DR STRONGLY SUBMITTED THAT LD. CIT(A) HA S ACCEPTED THE VARIOUS ADDITIONAL EVIDENCES LIKE DELIVERY CHALLAN OCTROI RECEIPTS B ILLS OF TRANSPORTERS ETC. THE AO WAS NOT ALLOWED ANY OPPORTUNITY TO VERIFY THESE DETAILS TH EREFORE AS PER PROVISION OF LAW THE MATTER SHOULD BE SET ASIDE TO THE FILE AND AO TO CONSIDER THE VARIOUS DETAILS FILED BEFORE THE LD. CIT(A). 6. ON THE OTHER HAND LEARNED COUNSEL OF THE ASSESS EE STATED THAT THE LD. CIT(A) HAS NOT ACCEPTED ANY FRESH ADDITIONAL EVIDENCE BECAUSE SUPPORTING DOCUMENTS LIKE COPY OF DELIVERY CHALLAN OCTROI RECEIPTS BILLS OF TRANSPO RTERS ETC. WERE FILED ONLY. IT WAS SUBMITTED THAT THESE VERY DETAILS ARE MENTIONED IN THE PURCHA SE BILL AS WELL AS IN SALE BILLS ALSO. IT WAS FURTHER SUBMITTED THAT THERE CANNOT BE ANY SALE WIT HOUT PURCHASE AS HELD BY HONBLE JURISDICTIONAL HIGH COURT IN CASE OF NIKUNJ ENTERPRISES PVT. LTD. INCOME TAX APPEAL NO. 5604/2010 DATED 17.12.2012. COPY OF THIS ORDER WAS ALSO FILED. REGARDING THE ADDITIONAL EVIDENCE LD. AR ALSO STATED THAT HONBLE GAUHATI HIGH COURT IN CASE OF PODDAR SWADESH UDYOG PVT. LTD.(2007) 295 ITR 252 (GAUHATI) HAS HELD THAT THE LD. CIT(A) AND TRIBUNAL WERE JUSTIFIED IN LAW IN RELYING UPON THE DOCUMENTS FILED SUBSEQUENTLY AT THE APPELLATE STAGE WHICH WAS IN CONTINUATION OF BOOKS OF ACCOUNT AND OTHER DOCUMENTS FILED BEFORE THE ASSESSING OFFICER. COPY OF THE THIS JUD GMENT WAS ALSO FILED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND AFTER CA REFULLY CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FOUND NO IN FIRMITY IN THE FINDING OF LD. CIT(A) WHO HAS GIVEN A FINDING OF FACT THAT WITHOUT PURCHA SE NO SALE CAN BEEN AFFECTED. LD. CIT(A) HAS VERIFIED THE PURCHASE AND CORRESPONDING SALE BI LLS BANK STATEMENT REFLECTING THE PAYMENT TO PARTY LETTER ISSUED BY THE PARTY REQUES TING C FORM ISSUED BY SALES TAX DEPARTMENT IN FAVOUR OF PURCHASING PARTIES DELIVER Y CHALLAN OCTROI RECEIPTS BILLS OF TRANSPORTERS ETC. AFTER THAT IT WAS CONCLUDED THAT THE PURCHASES WERE GENUINE. WE HAVE ALSO SEEN THE DOCUMENTS OF PURCHASE AND SALE COPIES OF WHICH ARE PLACED ON RECORD. WE HAVE ALSO SEEN THAT IN THE PURCHASE BILL NAME OF PARTIE S ARE MENTIONED NUMBER OF TRUCK THROUGH 4 ITA 5141M 2011 (AY-2008-09) ITO VS. M/S SHREE GAUTAMSWAMI STEELS LTD. THE MATERIAL WAS DISPATCHED IS MENTIONED GROSS WEI GHT IS MENTIONED ITEM OF PURCHASE IS MENTIONED. WE HAVE ALSO SEEN THE COPY OF SALE BILL S AND FOUND THAT RELEVANT DETAILS ARE MENTIONED I.E. NUMBER OF TRUCK THROUGH WHOM THE DI SPATCH WAS MADE NAME OF PARTY TO WHOM. IT IS FURTHER SEEN THAT THE SAME MATERIAL WHI CH WAS PURCHASED BY THE ASSESSEE FROM RATJI RE-ROLLER (INDIA) LTD. HAS BEEN SOLD TO M/S. VIMAL BUILDERS. SIMILARLY OF OTHER PURCHASE AND SALES HAVE BEEN AFFECTED BY THE ASSESS EE AND COPIES OF THE SAME ARE PLACED ON RECORD. THEREFORE THIS IS NOT THE CASE OF THE DEPA RTMENT THAT ASSESSEE HAS NOT MADE ANY PURCHASE. IT IS ALSO A MATTER OF FACT THAT WITHOUT ANY MATERIAL THERE CANNOT BE ANY SALE. 8. THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN A CASE OF VIMAL GUPTA AND THE DECISION OF THE HONBLE GAUHATI HIGH COURT IN T HE CASE OF PODDAR SWADESH UDYOG PVT. LTD. (SUPRA) ARE SQUARELY APPLICABLE ON THE FACTS O F THE PRESENT CASE THEREFORE WITHOUT GOING INTO DETAIL FURTHER WE HOLD THAT LD. CIT(A) HAS EXA MINED THE CASE IN RIGHT PERSPECTIVE AND THEN ONLY HAS ALLOWED THE ISSUE IN FAVOUR OF THE AS SESSEE. ACCORDINGLY WE CONFIRM THE ORDER OF THE CIT(A). 9. IN THE RESULT THE APPEAL OF THE DEPARTMENT IS D ISMISSED. 06 ) $) )0 7' ORDER PRONOUNCED ON 10 TH DAY JULY 2013 . 4 23' 6 10.07.2013 3 SD/- SD./- ( N. K. BILLAIYA ) ( R.K. GUPTA ) $ / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: DATED : 10.07.2013 . . /. PRAMOD KUMAR PS 5 ITA 5141M 2011 (AY-2008-09) ITO VS. M/S SHREE GAUTAMSWAMI STEELS LTD. 4 4 4 4 0 0 0 0 9'0 9'0 9'0 9'0 / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. -(+ / THE RESPONDENT 3. : ) ( / THE CIT(A) 4. : / CIT CONCERNED 5. ; 0 / DR ITAT MUMBAI 6. <& = / GUARD FILE 4 4 4 4 / BY ORDER > >> > / 7 7 7 7 ) ) ) ) (DY./ASSTT. REGISTRAR) / ITAT MUMBAI