DCIT (OSD) 8(1), MUMBAI vs. LOK HOUSING & CONSTRUCTION LTD, MUMBAI

PDF · subscribers
ITA 141/MUM/2014Status: DisposedITAT Mumbai25 May 2018AY 2003-044 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 deletion of the addition by the Commissioner (Appeals). It found that the Assessing Officer relied solely on Yakindra Aurora's statement, which was later retracted and disregarded in Aurora's own assessment. No other evidence was presented to prove the expenses were bogus.

What were the facts?

The Assessing Officer disallowed transportation expenses of Rs. 32,17,500, treating them as bogus based on a statement from a third party, Yakindra Aurora. The assessee challenged this disallowance before the Commissioner (Appeals).

What were the issues?

Whether the Assessing Officer had sufficient evidence to treat transportation expenses as bogus solely based on a retracted statement from a third party.

Which sections of the Income-tax Act were involved?

Section 133A,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “A” BENCH, MUMBAI

Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWAL

For Respondent: Ms. N. Hemlatha

Aforesaid appeal by the Revenue is against order dated 25th October 2013, passed by the learned Commissioner (Appeals)–17, Mumbai, for the assessment year 2003–04.

2.

The grievance of the department in the present appeal is confined to deletion of addition of ` 32,17,500, made by the Assessing Officer on account of alleged bogus expenses.

2 M/s. Lok Housing & Construction Ltd.

3.

Brief facts are, the assessee a company is engaged in the business of real estate development. During the assessment proceedings, the Assessing Officer found that as per the material available on record a survey under section 133A of the Income Tax Act, 1961 (for short “the Act”) was carried out in case of one Yakindra Aurora, Proprietor M/s. Appu Goods Transport and M/s. Sunny Goods Transport, Kalyan, on 19th October 2005. In course of survey, a statement was also recorded from Yakindra Aurora. In the said statement, Yakindra Aurora stated that he has not carried out any work on behalf of the assessee. Relying upon the statement of Yakindra Aurora, the Assessing Officer treated the claim of payment of transportation charges of ` 32,17,500, as bogus and added to the income of the assessee. Assessee challenged the disallowance before the first appellate authority.

4.

The learned Commissioner (Appeals) after considering the submissions of the assessee in the context of facts and materials on record deleted the addition.

5.

We have heard learned Departmental Representative and perused materials on record. On a careful reading of the assessment order it is evident that mainly relying upon the statement recorded from Yakindra Aurora during survey the Assessing Officer has treated

3 M/s. Lok Housing & Construction Ltd. the transportation expenditure as bogus. However, as observed by the learned Commissioner (Appeals), except, the statement of Yakindra Aurora, the Assessing Officer has not brought on record any other evidence to establish the fact that transportation expenditure was a bogus claim. Further, he has also observed that the statement recorded from Yakindra Aurora was subsequently retracted by him and in the assessment completed under section 143(3) of the Act in case of Yakindra Aurora pursuant to the survey, the Assessing Officer had discarded / ignored the original statement as well as the retracted statement of Yakindra Aurora. Further, the Assessing Officer has treated the entire transportation receipt as income of Yakindra Aurora and estimated profit thereon. Further, the learned Commissioner (Appeals) has also relied upon the order passed in case of M/s. Azofen Pvt. Ltd. wherein similar addition was deleted. Further, the learned Commissioner (Appeals) observed that though based on the statement of Yakindra Aurora addition was made in the impugned assessment year, however, similar addition was not made in assessment year 2002–03 and 2005–06. From the aforesaid factual finding of the learned Commissioner (Appeals) it becomes clear that the Assessing Officer had no other material in his possession except the statement of Yakindra Aurora to suggest that the expenditure claimed by the assessee was bogus. While deciding Revenue’s appeal on identical

4 M/s. Lok Housing & Construction Ltd. issue in case of M/s. Azofen Pvt. Ltd. in ITA no.4424/Mum./2010, of the even date we have upheld deletion of similar disallowance made by the Assessing Officer. In view of the aforesaid, we do not find any reason to interfere with the order of the learned Commissioner (Appeals) on this issue. Ground raised is dismissed.

6.

In the result, Revenue’s appeal is dismissed Order pronounced in the open Court on 25.05.2018

More judgments on Section 133A

All 5,893 judgments and leading authorities on Section 133A →

Recent GST High Court judgments

Search GST case law →