ITO 28(1)(4), MUMBAI vs. SHRI. JOSEPH SANTA LOPEZ, PANVEL

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ITA 6449/MUM/2019Status: DisposedITAT Mumbai29 July 2021AY 2009-103 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s decision, agreeing that since sales were not in doubt, actual purchases must have been made. The estimation of 12.5% of the bogus purchases was considered fair and reasonable.

What were the facts?

The Revenue appealed against a partial relief granted to the assessee by the CIT(A) regarding alleged bogus purchases. The assessee, engaged in trading iron and steel fittings, made suspicious purchases from four entities, but could not substantiate them. The CIT(A) estimated additions at 12.5% of the alleged bogus purchases.

What were the issues?

Whether the disallowance of purchases was justified and if the estimation made by the CIT(A) was appropriate in the absence of substantiation.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147,Section 148,Section 133(6)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI

Before: HON’BLE SHRI MAHAVIR SINGH, VP & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM

For Respondent: Ms. Usha Gaikwad, Ld. Sr. DR

आयकर अपीलीय अधिकरण “एफ” न्यायपीठ म ुंबई में। IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI माननीय श्री महावीर स िंह, उपाध्यक्ष एवुं माननीय श्री मनोज कुमार अग्रवाल ,लेखा दस्य के मक्ष। BEFORE HON’BLE SHRI MAHAVIR SINGH, VP AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM (Hearing Through Video Conferencing Mode) 1. आयकरअपील िं./ (धििाारण वर्ा / Assessment Year: 2009-10) ITO 28(1)(4), Shri Joseph Santa Lopez R. No. 330, 3rd Floor Tara CHS Ltd, Plot No.16, बिाम/ Tower No. 6 Sector-16, Roadpali Kalamboli, Vs. Vashi Railway Station Complex Tal: Panvel, Dist-Raigad, Navi Mumbai-400 703 Maharashtra-410 206. स्थायीलेखा िं./ जीआइआर िं./ PAN/GIR No. AAAPL-5131-B (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : Assessee by : None Revenue by : Ms. Usha Gaikwad, Ld. Sr. DR ुनवाई की तारीख/ : 29/07/2021 Date of Hearing घोषणा की तारीख / : 29/07/2021 Date of Pronouncement आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member)

1.

Aforesaid appeal by Revenue for AY 2009-10 contest the order of Ld. Commissioner of Income Tax (Appeals)-26 Mumbai [CIT(A)] dated 09/08/2019 which has granted partial relief to the assessee on account of alleged bogus purchases.

2.

At the time of hearing, none appeared for assessee. However, the material on record was sufficient for disposal of the appeal. The Ld. DR pleaded for restoration of assessment as framed by Ld. AO u/s 143(3) r.w.s. 147 on 28/03/2015. The assessee being resident individual is stated to be engaged in trading of iron and steel fittings. 3. The case was reopened pursuant to receipt of certain information from Sales Tax Department, Maharashtra, wherein it transpired that the assessee made suspicious purchases of Rs.54.65 Lacs from 4 entities as detailed in para-3 of the assessment order. Accordingly, notice u/s 148 was issued on 26/03/2014. During assessment proceedings, the assessee was directed to substantiate these purchases. 4. Though the assessee produced stock register, purchase invoices and ledger extract, however, notices issued u/s 133(6) to all the suppliers did not elicit any satisfactory response. The assessee could not produce any of the parties. Therefore, aforesaid purchases were disallowed and added back to the income of the assessee. 5. The Ld. CIT(A), after considering assessee’s submissions, concurred that sales turnover was not under doubt and there could be no sale without purchase of material. Therefore, the only logical conclusion that could be drawn is that the assessee made actual purchases from undisclosed parties in the grey market at lower rates and procured the bills from these suppliers to suppress the profits. Therefore, it would be prudent to make estimated additions as per the decision of Hon’ble Gujarat High Court in CIT V/s Simit P. Sheth (356 ITR 451). Finally the estimation was made at 12.5% of alleged bogus purchases of Rs.54.65 Lacs. Aggrieved, the revenue is in further appeal before us. 6. After going impugned order, we find that Ld. CIT(A) has clinched the issue in the right perspective. The sale was not under doubt and there could be no sale without actual purchase of material keeping in

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