ITO 17 (1)(5), MUMBAI vs. HEMANSHU HARILAL MEHTA, MUMBAI

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ITA 5044/MUM/2018Status: DisposedITAT Mumbai16 September 2019AY 2011-124 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 to restrict the addition to 8% of the bogus purchases. It reasoned that while the assessee had primary purchase documents and made payments through banking channels, the failure to prove delivery and the supplier's non-response justified an addition to account for the profit element.

What were the facts?

The Revenue appealed against the CIT(A)'s order reducing disallowance on bogus purchases from 12.5% to 8%. The assessee made purchases from a suspicious entity, and despite efforts, the supplier could not be verified, nor was the delivery of material proven.

What were the issues?

Whether the addition on account of bogus purchases should be restricted to 8% as decided by the CIT(A) or 12.5% as initially adopted by the AO, considering the failure to prove delivery and supplier verification.

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

Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

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

For Appellant: Shri M.K. Patel & Shri K.S. Chokshi-Ld. ARs
For Respondent: Shri Akhtar H. Ansari-Ld.DR, Shri M.K. Patel & Shri K.S. Chokshi-Ld. ARs

आदेश / O R D E R

Per Bench: -

1.

Aforesaid appeal by revenue for Assessment Year [AY] 2011-12 contest the order of Ld. Commissioner of Income-Tax (Appeals)-56,

Hemanshu Harilal Mehta Mumbai, [in short referred to as ‘CIT(A)’], Appeal No. CIT(A)-56/ITO- 17(1)(5)/2017-18/678 dated 27/06/2018 on following grounds of appeal: - On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in reducing the disallowance at 8% as against 12.5% adopted by the A.O. in respect of bogus purchases.” 2.1 Facts on record would reveal that the assessee being resident individual stated to be engaged in trading of hardware items was assessed u/s 143(3) r.w.s 147 of Income Tax Act, 1961 on 28/09/2016 wherein the assessee was saddled with estimated additions of Rs.1.44 Lacs on account of suppression of profit in lieu of inflated purchases. Pursuant to receipt of certain information from DGIT (Investigation), it transpired the assessee made purchases of Rs.11.55 Lacs from a suspicious entity namely M/s Parikh Multi Trade. Accordingly, as per due process of law, the case was reopened vide issuance of notice u/s 148 on 29/03/2016 followed by statutory notices u/s 143(2) & 142(1), wherein the assessee was directed to substantiate the purchases. 2.2 Although the assessee defended the purchases, however, notices issued u/s 133(6) to the said entity remained un-served / un-responded to and the assessee also failed to produce the said supplier. Resultantly, the assessee was saddled with estimated additions of 12.5% against these purchases. The learned first appellate authority reduced the estimate to 8%, against which the revenue is under appeal before us. It appears that the assessee has not preferred any further appeal. We have heard and considered the rival submissions.

Hemanshu Harilal Mehta 3. We are of the considered opinion there could be no sale without actual purchase of material keeping in view the assessee’s nature of business. It transpires that the assessee was in possession of primary purchase documents and the payments to suppliers were through banking channels. The sales turnover reflected by the assessee has not been disturbed / disputed by Ld. AO. However, at the same time, the assessee miserably failed to prove the delivery of material. Notices issued u/s 133(6) remained un-responded to. Under such circumstances, the additions which could be sustained, was to account for profit element embedded in these purchase transactions to factorize for profit earned by assessee against possible purchase of material in the grey market and undue benefit of VAT against such bogus purchases, which Ld. first appellate authority has rightly done. Therefore, concurring with the approach of learned first appellate authority in restricting the additions to 8%, we dismiss the appeal.

4.

In result, the appeal stands dismissed.

Order pronounced in the open court on 16th September, 2019.

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