ITO 31(2)(3), MUMBAI vs. MUKESH M PARMAR, MUMBAI

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ITA 4172/MUM/2015Status: DisposedITAT Mumbai29 March 2017AY 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, stating that the deletion of the entire addition was justified as the assessee's sales account remained undisturbed. The Tribunal relied on High Court judgments that supported this approach.

What were the facts?

The Revenue filed appeals against the CIT(A)'s order which deleted a significant portion of additions made on account of unexplained purchases from parties listed as suspicious by the Sales Tax Department. The CIT(A) had restricted the addition to the gross profit margin.

What were the issues?

Whether the entire addition on account of bogus purchases should be deleted when the sales account is undisturbed, and whether the onus is on the assessee to produce parties from whom purchases were made.

Which sections of the Income-tax Act were involved?

Section 133(6)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI

Before: SHRI D. KARUNAKARA RAO & SHRI RAVISH SOOD

For Appellant: Shri Jothilakshmi Nayak, DR
Hearing: 16.03.2017Pronounced: 29.03.2017

सुनवाई की तायीख / Date of Hearing : 16.03.2017 घोषणा की तायीख /Date of Pronouncement : 29.03.2017 आदेश / O R D E R PER D. KARUNAKARA RAO, AM: There are two appeals under consideration. Both these appeals are filed by the Revenue for the assessment years 2009-2010 and 2011-2012. Since, the issues raised in these appeals are identical / inter-connected, therefore, for the sake of convenience, they are clubbed, heard combinedly and disposed of in this consolidated order. Appeal wise adjudication is given in the following paras of this order. (AY 2009-2010) 2. This appeal filed by the Revenue on 7.7.2015 is against the order of the CIT (A)-42, Mumbai dated 24.4.2015 for the assessment year 2009-2010. In this appeal, Revenue raised the following grounds which read as under:- “1. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in deleting the addition of Rs. 55,63,393/- made on account of unexplained purchases made from M/s. Mahavir Enterprises and M/s. S.S. Enterprises and directing the AO to tax 15.73% of bogus purchases being gross profit margin ignoring the fact that these two parties are included in the list of suspicious and / or hawala dealers provided by the Sales Tax Department.

2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in deleting the addition of Rs. 55,63,393/- made on account of unexplained purchases ignoring the fact that the notices issued to M/s. Mahavir Enterprises and M/s. S.S. Enterprises u/s 133(6) of the Act were received back unserved.

3. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in deleting the addition of Rs. 55,63,393/- made on account of unexplained purchases ignoring the fact that the onus lies on assessee to produce the concerned parties which assessee failed to do.”

3.

At the outset, Ld DR for the Revenue mentioned that there is none to represent the case of the assessee. Considering the covered nature of the issues involved in the appeal, Ld DR is of the opinion, the matter can be adjudicated by the Bench. Narrating the facts of the case, Ld DR mentioned that this is a case of „bogus purchases‟ involving Sales Tax Department. In the assessment, AO made addition of Rs. 55,66,393/- being purchases made from the couple of suppliers, whose names appeared in the official website of the Sales Tax Department. There is an allegation regarding the violation of VAT provisions.

4.

During the proceedings before the first appellate authority, CIT (A) relied on certain precedents and restricted the addition to the average GP rate of 15.73%. Accordingly, CIT (A) partly allowed the appeals of the assessee. Aggrieved with the said relief granted by the CIT (A), Revenue is in appeal before the Tribunal. However, nothing is brought to our notice about the existence of any appeal by the assessee regarding the confirmation of the addition of Rs. 8,75,122/-.

5.

On hearing the Ld DR for the Revenue and also on perusal of the orders of the Revenue Authorities as well as the relevant material placed before us, we are of the considered opinion, the CIT (A) is justified in not confirming the entire addition as sales account of the assessee stands undisturbed. This line of adjudication has the strength of jurisdictional High Court judgment in the case of CIT vs. Nikunj Eximp Enterprises Pvt Ltd (216 Taxman.com 171) (Bom.) and judgment of the Hon‟ble Gujarat High Court in the case of CIT vs. Simit P. Seth (356 ITR 451) (Guj.). Considering the overall factual matrix of the case, we are of the opinion, the decision taken by the CIT (A) vide para 3.5 of his order is fair and reasonable and it does not call for any interference. Accordingly, grounds raised

by the Revenue are dismissed.

6. In the result, appeal of the Revenue is dismissed. (AY 2011-2012)

7. This appeal filed by the Revenue on 7.7.2015 is against the order of the CIT (A)-42, Mumbai dated 24.4.2015. In this appeal, Revenue raised three grounds and

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