Loading judgment…
No AI summary yet for this case.
Order u/s.254(1)of the Income-tax Act,1961(Act) Per Pawan Singh, J.M. �या�यक सद�य iou iou iou �संह के अनुसार: iou 1. This appeal by Revenue under section 253(1) of the Income Tax Act( ‘Act’) is directed against the order of Commissioner (Appeals) dated 28th Nov 2014 for Assessment Year 2009-10. Though, the revenue has raised as many as 7 Grounds of appeal
, however, as per our considered opinion the only substantive grounds of appeal is “whether they landed Commissioner (Appeals) erred in deleting the unexplained expenditure of Rs. 56247992/- under section 69C of the Act, on account of bogus purchases. Rest of the grounds of appeal is argumentative in nature.
2. The brief facts of the case are that assessee is an individual and engaged in the business of Civil Construction. The assessee filed return of income for the relevant Assessment Year on 29 September 2009 declaring total income at Rs. 82,38,200/-. The assessment was completed under section 143(3) on 29 December 2011 assessing total income of Rs. 10558480/-. Subsequently, the assessment was reopened under section 147 of the Act. The notice under section 148 dated 19/2013 was served upon the assessee. The assessee demanded the reasons of reopening of the concluded assessment. The reasons of re-opening were provided to the assessee along with letter dated 25th of July 2013. The assessment was reopened on the basis of 2 Shri Sanjay Dhokad. information received from the office of DGIT (investigation) that the assessee made purchases from the dealers who were providing bogus bills. In the information it was informed that Maharashtra Government has carried out investigation in respect of those parties who were involved in providing bills without supply of goods. The sale Tax Department of State Government recorded their statements, deposition and affidavit etc. On the basis of said information the AO had reasons to believe that income chargeable to tax has escaped assessment for the relevant assessment year. The assessee objected to the reopening vide his letter dated 12 August 2013. The assessee objected that, the said dealers were merely suspicious dealer as per the Department; there was no evidence to prove that purchases are bogus and the reasons was recorded only on the basis of borrowed satisfaction / third-party information. The assessee further contended that this was nothing but a change of opinion. The objection of the assessee was rejected by AO on 25 September 2013. The AO proceeded for reassessment. During the re-assessment preceding the assessee was asked to furnish a list of the person from whom purchases were made. The assessee was also provided in the list of hawala dealers which were appearing in the list of suspicious dealer and were indulging in issuing bogus bills without any supply of goods or material for commission basis. The AO issued notice under section 133(6) on 15 Jan 2014 to all those parties. The notice issued to all the parties were returned reserved. On return of the said notices the assessee was asked to show cause as to why the purchases from the said parties aggregating to Rs.5,62,47,992/- should not be treated as unexplained expenditure. Assessee filed his reply vide reply dated 28 January 2014. The contention of assessee was not accepted by AO. The AO made the addition of the aggregate of the purchases totaling Rs. 5,62,47,992/- in assessment order passed under section 143(3)rws 147 dated 28 March 2014. On appeal before Commissioner (Appeals) the entire addition was deleted, holding that similar addition was made against the assessee for assessment year 2010-11 and the same was deleted on appeal by his ld predecessor. Thus, aggrieved by the order of ld Commissioner (Appeals) the revenue has filed present appeal before us.
We have heard ld DR for revenue at length and have gone through the material available on record. The ld DR for the revenue argued that during the assessment 3 Shri Sanjay Dhokad. preceding the assessee failed to produce all the parties for verification of the purchases. Assessee made the purchases from the parties who were listed in the web- site of Sale tax Department of Government of Maharashtra and was engaged in providing bogus bills without any sale or purchase or making any delivery of goods. The onus to prove the purchases are genuine was upon the assessee, and the assessee failed to prove the same before the Assessing Officer. The ld DR prayed that order of AO may be restored by setting aside the order of ld Commissioner (Appeals).
We have considered the contention of landed AR for the revenue and gone through the orders of authorities below. The AO made the addition during the reassessment proceeding holding that the onus was upon the assessee to prove the genuineness of the expenditure. The assessee has to prove that the seller were genuine supplier and the same was to be discharge by a strong and clinching evidence ,particularly when the notices under section 133(6) were returned unnerved. The Sale tax Department had recorded the statement of the proprietors of all those parties and the copies of statement were provided to the assessee along with the show cause notice. The contention of the assessee that purchases have been recorded by him in the books of account is not tenable. Further, the contention of the assessee that payments were made through account payee cheques is not sufficient for claiming any expenditure. During the first appellate proceeding the assessee besides the contention as urged before the AO submitted that the AO made the similar addition for assessment year 2010-11 on similar grounds, and/or appeal same were deleted. The assessee further contended that books of account was duly audited and payments were made from undisclosed source/disclosed bank account and all the payments are account payee cheque and no region to doubt the purchases. The AO was not rejected the books of account. The assessee further filed the letter of confirmation of the supplier copy of bank statement showing the entries of cement and stock reconciliation statement, further the sale and purchase were not doubted by the AO, the substantial amount of sale by the assessee was to the government Department. The ld CIT(A) after considering the contention of the assessee passed the following order; 4 Shri Sanjay Dhokad. “In appeal I find that the assessee has made the same submissions which are identical to the ones made before my predecessor who passed an order in the case of the assessee on the same issue on 10.05.2013. Detailed regions for given decision in favour of the appellant are found in para 5.3 of the appellate order for AY 2010-11. I find that the facts and circumstances and the information available on the judicial decision considered by my predecessor are identical to the current appeal. Therefore, in the light of the same facts and issue is decided in favour of appellant for the present year also. The appeal is allowed.”
We have seen that learned Commissioner (Appeals) allowed the appeal of the assessee on the basis of principle of consistency as the similar addition/disallowance was deleted from the assessment of subsequent year. The ld DR could not differentiate as to how the facts for the year under consideration was different for the assessment year 2010-11. Hence, we do not find any ground to interfere in the finding of ld Commissioner (Appeals). In the result the grounds of appeal
raised by revenue is dismissed
6. In the result, appeal filed by Revenue is dismissed.
फलतः �नधा�रती vf/kdkjh �वारा दा�खल क� गई अपील Ukkमंजूर क� जाती है. Order pronounced in the open court on 8th February,2017. आदेश क� घोषणा खुले �यायालय म� �दनांक 8 Qjवर�,2017 को क� गई । Sd/- Sd/- (राजे�� / RAJENDRA (iou iou �संह / PAWAN SINGH)) iou iou लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई/Mumbai,�दनांक/Date: 08.02.2017 SK आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. Assessee /अपीलाथ� 2. Respondent /��यथ� 3.The concerned CIT(A)/संब�ध अपील�य आयकर आयु�त, 4.The concerned CIT /संब�ध आयकर आयु�त 5. DR “E” Bench, ITAT, Mumbai /�वभागीय ��त�न�ध b खंडपीठ,आ.अ.�याया.मुंबई 6. Guard File/गाड� फाईल स�या�पत ��त //True Copy// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपील�य अ�धकरण, मुंबई /ITAT, Mumbai