PRAGARAM J. PATEL,MUMBAI vs. ITO 19 (2)(5), MUMBAI

PDF · subscribers
ITA 5743/MUM/2018Status: DisposedITAT Mumbai30 September 2019AY 2010-114 pages

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

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the addition of 12.5% of the bogus purchases, as the assessee failed to prove the genuineness of the transactions and the addition was made on estimation basis to cover the profit element.

What were the facts?

The assessee declared income of Rs. 3,57,970. The AO reopened the assessment based on information that the assessee obtained bogus bills for purchases amounting to Rs. 74,88,178. The AO made an addition of 12.5% of the bogus purchases.

What were the issues?

Whether the addition made by the AO on account of bogus purchases, at 12.5% of the total amount, is justified when the assessee failed to prove the genuineness of the purchases.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147,Section 148,Section 142(1),Section 143(2)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI

Before: SHRI S. RIFAUR RAHMAN (AM) & SHRI RAM LAL NEGI (JM)

For Respondent: Shri C.S. Sharma (DR)
Hearing: 26/09/2019Pronounced: 30/09/2019

O R D E R

PER RAM LAL NEGI, JM

1.

This appeal has been filed by the assessee against the order dated 26.07.2018 passed by the Commissioner of Income Tax (Appeals)-4 (for short ‘the CIT(A), Mumbai, for the assessment year 2010-11, whereby the Ld. CIT(A) has dismissed the appeal filed by the assessee against the assessment order passed u/s 143(3) r.w.s 147 of the Income Tax Act, 1961 (for short the ‘Act’).

2.

The assessee firm filed its return of income for the assessment year under consideration declaring the total income of Rs.3,57,970/-. Since, the AO received information from DGIT (Inv.) that the assessee during the previous year had obtained bogus bills from five hawala dealers amounting to Rs. 74,88,178/-,without actual purchasing goods. On the basis of the said information, the AO reopened the assessment after issuing notice u/s 148 of the Act to the assessee after recording the reasons for reopening of the return. Accordingly, the AO issued notice u/s 142 (1) and 143 (2) of the Act. In Assessment Year: 2010-11 response thereof, the authorized representative of the assessee appeared before the AO furnished the details and discussed the case. The assessee pleaded that that the purchases were genuine and the goods were actually supplied by the parties. However, AO rejecting the contention of the assessee made addition of 12.5% of total amount of bogus purchases and determined the total income of the assessee at Rs. 12,93,990/-The assessee challenged the assessment order before the CIT(A). The Ld. CIT(A) after hearing the assessee confirmed the addition to 12.5% . Against the said order, the assessee is in appeal before the Tribunal.

3.

The assessee has challenged the impugned order passed by the Ld. CIT

(A) on the following effective ground:-

The Ld. CIT (Appeals) erred in upholding the disallowance of Rs. 9,36,022/- calculated at 12.50% margin on 74,88,178/- on arbitrary basis.

4.

This case was fixed for hearing on 26.09.2019. However, on the said date, when the case was called out for hearing, none appeared on behalf of the assessee. From the record, we observed that the assessee has not appeared on the said date despite service of notice. Even no application for adjournment was received. The notice issued on 24.08.19 has not received back. Hence, we are of the considered view that no purpose would be served in case the appeal is adjourn and fresh notices is issued. We accordingly decided to dispose of the appeal on the basis of material on record after hearing the Departmental Representative (DR).

5.

The Ld. DR submitted before us that since the assessee had failed to discharge the onus of proving genuineness of the transaction of purchase by adducing cogent evidence, the Ld. CIT(A) has rightly confirmed the addition made by the AO in accordance with the law laid down by the Hon’ble Gujarat High Court in the case of CIT vs. Simit P. Seth 356 ITR 451(Guj). The Ld. DR further submitted that Since the Ld. CIT(A) has confirmed the addition Assessment Year: 2010-11 considering the profit embedded in the questioned transaction, there is no infirmity in the order of the Ld CIT(A) to interfere with the same.

6.

We have carefully gone through the relevant record including the cases relied upon by the authorities below. We are convinced from the material on record that the assessee has failed to establish the genuineness of the purchases in question by adducing cogent and convincing evidence. The notices issued by the AO were received back un-served. The assessee also failed to produce the parties before the AO for verification. Hence, in our considered view, the AO has rightly concluded that the assessee has not made the questioned purchases from the parties mentioned in the books of account of the assessee. However, the AO has not rejected the sale of the goods so purchased. The above-mentioned facts give rise to the conclusion that the assessee had purchased the goods in question from grey market and evaded the tax applicable during the relevant period. Under these circumstances, the AO had no option but to make an addition on estimation basis considering the applicable rate of VAT or other taxes and the profit embedded in the said transaction. In the first appeal, the Ld. CIT(A) has confirmed the addition of 12.5%, holding that the estimate reached at by the AO is reasonable and in accordance with the law laid down by the Hon’ble Gujarat High Court.

More judgments on Section 147

All 49,210 judgments and leading authorities on Section 147 →

Recent GST High Court judgments

Search GST case law →