ITO 27(1)(5), MUMBAI v. JITENDRA DALICHAND SHAH, MUMBAI

ITA 5660/MUM/2018 | 2010-2011
Pronouncement Date: 28-11-2019 | Result: Dismissed

Appeal Details

RSA Number 566019914 RSA 2018
Assessee PAN AOVPS4763D
Bench Mumbai
Appeal Number ITA 5660/MUM/2018
Duration Of Justice 1 year(s) 1 month(s) 24 day(s)
Appellant ITO 27(1)(5), MUMBAI
Respondent JITENDRA DALICHAND SHAH, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 28-11-2019
Last Hearing Date 24-10-2019
First Hearing Date 24-10-2019
Assessment Year 2010-2011
Appeal Filed On 04-10-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH MUMBAI BEFORE SHRI SAKTIJIT DEY JUDICIAL MEMBER AND SHRI N.K. PRADHAN ACCOUNTANT MEMBER ITA NO. 5660 / MUM . /2018 ( ASSESSMENT YEAR : 20 10 11 ) INCOME TAX OFFICER WARD 27(1)(5) MUMBAI . APPELLANT V/S JITENDRA DALICHAND SHAH 401 NAGESHWAR KRUPA GARDEN LANE LBS MARG GHATKOPAR (W) MUMBAI 400 086 PAN AOVPS4763D . RESPONDENT REVENUE BY : SHRI BHERA RAM ASSESSEE BY : SHRI DHARMIL JHAVERI DATE OF HEARING 21.11.2019 DATE OF ORDER 28.11.2019 O R D E R PER SAKTIJIT DEY. J.M. A FORESAID APPEAL HAS BEEN FILED BY THE REVENUE CHALLENGING THE ORDER DATED 5 TH JULY 2018 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 25 MUMBAI FOR THE ASSESSMENT YEAR 2010 11. 2. THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO PARTIAL RELIEF GRANTED BY LEARNED COMMISSIONER (APPEALS) IN RESPECT OF ADDITION MADE ON ACCOUNT OF NON GENUINE PURCHASES. 2 JITENDRA DALICHAND SHAH 3. BRIEF FACTS ARE THE ASSESSEE IS A TRADER IN IRON AND STEEL THROUGH HIS PROPRIETORSHIP CONCERN M/S. JAY TRADERS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE FILED HIS RETURN OF INCOME ON 14 TH SEPTEMBER 2010 DECLARING TOTAL INCOME OF ` 3 40 648. ON THE BASIS OF INFORMATION RECEIVED FROM THE DGIT (INV.) MUMBAI AND THE SALES TAX DEPARTMENT GOVERNMENT OF MAHARASHTRA THAT PURCHASES WORTH ` 1 36 99 156 CLAIMED TO HAVE BEEN MADE FROM 23 PARTIES IS NON GENUINE AS THEY ARE IN THE NATURE OF ACCOMMODATION ENTRIES THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT 1961 (FOR SHORT 'THE ACT' ). IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF SUCH PURCHASES BY CALLING FOR CERTAIN DOCUMENTARY EVIDENCES. AS ALLEGED BY THE ASSESSING OFFICE R THE ASSESSEE FAILED TO FURNISH THE REQUIRED EVIDENCES. HE ALSO OBSERVED THAT THE PARTIES FROM WHICH THE ASSESSEE CLAIMED TO HAVE PURCHASED THE GOODS WERE NOT AVAILABLE IN THEIR GIVEN ADDRESS. THUS HE ULTIMATELY CONCLUDED THAT THE PURCHASES MADE BY THE ASSESSEE WERE NON GENUINE. HAVING HELD SO THE ASSESSING OFFICER RELYING UPON CERTAIN JUDICIAL PRECEDENTS PROCEEDED TO ESTIMATE THE PROFIT ELEMENT ON SUCH PURCHASES BY APPLYING RATE OF 12.5% AND MADE AN ADDITION OF ` 17 12 395. THE ASSESSEE CHALLENGED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY. 3 JITENDRA DALICHAND SHAH 4. A FTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD LEARNED COMMISSIONER (APPEALS) RESTRICTED THE ADDITION TO 8% OF THE NON GENUINE PURCHASES. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THE ESTIMATION OF PROFIT @ 12.5% AS WAS DONE BY THE ASSESSING OFFICER IS REASON ABLE HENCE SHOULD BE RESTORED. PER CONTRA LEARNED AUTHORISED REPRESENTATIVE SUBMITTED IN ASSESSEES OWN CASE FOR THE ASSESSMEN T YEAR 2009 10 THE TRIBUNAL WHILE DEALING WITH AN IDENTICAL ISSUE HAS RESTRICTED THE ADDITION TO 8%. 6. HAVING CONSIDERED RIVAL SUBMISSIONS WE ARE OF THE VIEW THAT THERE CANNOT BE ANY DISPUTE THAT THE ASSESSEE WAS UNABLE TO PROVE THE GENUINENESS OF PURCHAS ES WITH CORROBORATIVE EVIDENCES. HOWEVER THE ASSESSING OFFICER HIMSELF HAS ULTIMATELY WORKE D OUT THE ADDITION ON NON GENUINE PURCHASES TO THE PROFIT ELEMENT EMBEDDED WHICH WAS ESTIMATED BY HIM @ 12.5%. IT IS ALSO OBSERVED WHILE DECIDING IDENTICAL NATURE OF DISPUTE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009 10 THE TRIBUNAL IN ITA NO.759/MUM./2018 DATED 7 TH MAY 2018 HAS RESTRICTED THE ADDITION TO 8% OF THE NON GENUINE PURCHASE S. L EARNED COMMISSIONER (APPEALS) HAVING FOLLOWED THE AFORESAID DECISI ON OF THE TRIBUNAL WHILE RESTRICTING THE ADDITION TO 8% WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS ). 4 JITENDRA DALICHAND SHAH ACCORDINGLY THE ORDER OF LEARNED COMMISSIONER (APPEALS) IS UPHELD ON THIS ISSUE. GROUND RAISED IS DISMISSED. 7. IN THE RESULT APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 28.11.2019 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMB AI DATED: 28.11 . 20 1 9 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT MUMBAI CITY CONCERNED; (5) THE DR ITAT MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT MUMBAI