ACIT 27 (3), MUMBAI v. SHIVKUMAR M. VISHWAKARMA, MUMBAI

ITA 6235/MUM/2018 | 2009-2010
Pronouncement Date: 29-11-2019 | Result: Dismissed

Appeal Details

RSA Number 623519914 RSA 2018
Assessee PAN AACPV6070D
Bench Mumbai
Appeal Number ITA 6235/MUM/2018
Duration Of Justice 1 year(s) 29 day(s)
Appellant ACIT 27 (3), MUMBAI
Respondent SHIVKUMAR M. VISHWAKARMA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 29-11-2019
Last Hearing Date 14-10-2019
First Hearing Date 30-10-2019
Assessment Year 2009-2010
Appeal Filed On 31-10-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6235/MUM/2018 ASSESSMENT YEAR: 2009 - 10 ACIT - 27(3) R. NO. 423 4 TH FLOOR TOWER NO. 6 VASHI RAILWAY STATION VASHI NAVI MUMBAI - 400703. VS. SHRI SHIVKUMAR M. VISHWAKARMA ROOM NO. 2 KAMAL KUNJ HOUSING SOCIETY NEAR LINK ROAD ASALFA VILLAGE GHATKOPAR (WEST) MUMBAI - 400084. PAN NO. AACPV6070D APPELLANT RESPONDENT REVENUE BY : SMT . JOTHILAKSHMINAYAK DR ASSESSEE BY : NONE DATE OF HEARING : 26 /11/2019 DATE OF PRONOUNCEMENT : 29/11/2019 ORDER PER N.K. PRADHAN A.M. THIS IS AN APPEAL FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEAR IS 2009 - 10. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 25 MUMBAI [IN SHORT CIT(A)] AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 OF TH E INCOME TAX ACT 1961 (THE ACT). THOUGH THE CASE WAS FIXED FOR HEARING ON 09.09 .2019 AND 26.11.2019 NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE BENCH ON THE ABOVE DATE. AS THERE IS NON - COMPLIANCE ON THE PART OF THE SHRI SHIVKUMAR M. VISHWAKARMA ITA NO. 6235/MUM/2018 2 ASSESS EE WE ARE PROCEEDING TO DISPOSE OFF THIS APPEAL ON MERITS AFTER EXAMINING THE DOCUMENTS AVAILABLE ON RECORD. 2. THE GROUNDS OF APPEAL FILED BY THE REVENUE READ AS UNDER: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 33 866 / - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF BOGUS PURCHASES WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD FAILED TO PRODUCE SUPPORTING DOCUMENTARY EVIDENCES TO SUPPORT OF HIS CLAIM AND WITHOUT CONSIDERING THE L ATEST APEX COURT DECISION IN THE CASE OF N. K. PROTEINS LTD. WHEREIN IT IS HELD THAT ONCE IT IS PROVED THAT THE PURCHASES ARE BOGUS THEN ADDITION SHOULD BE MADE ON ENTIRE PURCHASES AND NOT ON PROFIT ELEMENT EMBEDDED IN SUCH PURCHASES? II. ON THE FACTS AND CIRC UMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN ESTIMATING THE PROFIT FROM HAWALA PURCHASES BY DISALLOWING ONLY RS.4 838/ - BEING 12.5% OF THE BOGUS PURCHASES AS EVEN THE BASIC ONUS OF PRODUCING TRANSPORT BILLS DELIVERY CHALLANS ETC. WERE NOT FU LFILLED BY THE ASSESSEE? 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME OF THE ASSESSMENT YEAR (AY) 2009 - 10 ON 28.09.2009 DECLARING TOTAL INCOME AT RS.12 83 405/ - . THE SAME WAS PROCESSED U/S 143(1) OF THE ACT. ON RECEIPT OF INFORMATION FROM THE SALES TAX DEPARTMENT GOVERNMENT OF MAHARASHTRA THAT THE ASSESSEE HAD OBTAINED BOGUS PURCHASE BILLS OF RS.38 704/ - FROM M/S NEDA ENTERPRISES THE ASSESSING OFFICER (AO) RE - OPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148 OF T HE ACT. IN RESPONSE TO IT THE ASSESSEE SUBMITTED THAT THE RETURN FILED ON 28.09.2009 BE TREATED AS RETURN IN RESPONSE TO NOTICE U/S 148 OF THE ACT. DURING THE COURSE OF RE - ASSESSMENT PROCEEDINGS THE AO ISSUED NOTICE U/S 133(6) TO THE ABOVE PARTY IN ORDER TO VERIFY THE GENUINENESS OF THE PURCHASES. HOWEVER THAT NOTICE WAS RETURNED SHRI SHIVKUMAR M. VISHWAKARMA ITA NO. 6235/MUM/2018 3 UN - SERVED BY THE POSTAL AUTHORITIES. CONSIDERING THE FACTS OF THE CASE AND THE INQUIRY DONE BY THE SALES TAX DEPARTMENT GOVERNMENT OF MAHARASHTRA THE AO MADE AN ADDITION OF RS .38 704/ - . 4. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). WE FIND THAT VIDE ORDER DATED 17.08.2018 THE LD. CIT(A) BY FOLLOWING THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SIMIT P. SHETH (ITA NO. 553 OF 2012) ESTIMATED THE PROFIT @ 12.5% WHICH COMES TO RS.4 838/ - . 5. BEFORE US THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT AS THE NOTICE U/S 133(6) ISSUED BY THE AO TO M/S NEDA ENTERPRISES WAS RETURNED UN - SERVED BY THE POSTAL AUTHO RITIES AND THE INQUIRY BY THE SALES TAX DEPARTMENT GOVERNMENT OF MAHARASHTRA ESTABLISHES THAT THE ASSESSEE HAD INDULGED IN BOGUS PURCHASES THE ADDITION OF RS.38 704/ - MADE BY THE AO BE RESTORED. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT MATE RIALS ON RECORD. IN THE CASE OF N.K PROTEINS LTD . (SUPRA) THERE WAS SEARCH PROCEEDINGS CONDUCTED BY THE REVENUE AT THE OFFICE PREMISES OF THE ASSESSEE WHEREIN BLANK SIGNED CHEQUE BOOKS AND VOUCHER OF NUMBER OF CONCERNS WERE FOUND. ACCORDINGLY THE PURCHAS ES MADE FROM THESE CONCERNS WERE TREATED AS BOGUS BY THE AO AND THE ENTIRE DEPOSITS IN BANK ACCOUNTS OF THESE PARTIES WERE TREATED AS ASSESSEES INCOME ON PROTECTIVE BASIS. ON APPEAL THE ITAT RESTRICTED THE ADDITION ON ACCOUNT OF ALLEGED BOGUS PURCHASES A T 25% I.E. RS.73 23 322/ - OF THE TOTAL PURCHASES AMOUNTING TO RS.2 92 93 288/ - . ON FURTHER APPEAL THE HONBLE HIGH COURT MODIFIED THE ORDER OF THE TRIBUNAL AND DIRECTED FOR ADDITION OF ENTIRE BOGUS PURCHASES. AFTER HEARING THE COUNSELS THE HONBLE SUPREM E COURT DISMISSED THE SLP FILED BY THE ASSESSEE AND CONFIRMED SHRI SHIVKUMAR M. VISHWAKARMA ITA NO. 6235/MUM/2018 4 THE DECISION OF THE HIGH COURT FOR ADDITION OF ENTIRE INCOME ON ACCOUNT OF BOGUS PURCHASES. HOWEVER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE W E AGREE WITH THE LD. CIT(A) T HAT ONLY THE PROFIT ELEMENT EMBEDDED IN SUCH PURCHASES BE BROUGHT TO TAX. RIGHTLY HE HAS RELIED ON THE DECISION ON SIMIT P. SHETH (SUPRA) AND ESTIMATED THE PROFIT @ 12.5% OF THE DISPUTED PURCHASES. THEREFORE WE AFFIRM THE ORDER OF THE LD. CIT(A). 7. IN THE RESULT THE APPEAL FILED BY THE R EVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2019. SD/ - SD/ - ( SAKTIJIT DEY ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 29/11/2019 RAHUL SHARMA SR. P.S. 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