Income Tax Appellate Tribunal - Mumbai
Ito Wd 3(4), Kalyan vs Haresh M Valiya, Dombivali on 26 October, 2017
आयकर अपीऱीय अधिकरण, मुंबई न्यायपीठ "सी", मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL BENCH "C" MUMBAI BEFORE SHRI D.T.GARASIA, JM AND SHRI RAJESH KUMAR, AM I.T.A. No.3514/Mum/2017 (निर्धारण वर्ा / Assessment Year: 2010-11) Income Tax Officer-Ward 3(4), Shri Haresh M Valiya, Kalyan 2nd floor, Rani Mansion, Prop of M/s Akshar Enterpries, Kalyan-Murbad road, बनाम/ Flat No.104, Kartkey Co-op Nr.SBI, Vs. HSG Soc, Plot No.05, MIDC, Kalyan (W)-421301 Pieri Zone, Dombivili (E)-421201 स्थायी ऱेखा सं ./ PAN : AFBPV5151P (अपीऱाथी /Appellant) : (प्रत्यथी / Respondent) अपीऱाथी की ओर से / Revenue by : Shri Rajat Mittal प्रत्यथी की ओर से/ Assessee by : None सुनवाई की तारीख /Da te o f He a r in g : 6.9.2017 घोषणा की तारीख /Da te o f Pro n ou n ce me nt : 26.10.2017 आदे श / O R D E R PER RAJESH KUMAR, A. M:
The captioned is appeal by the Revenue pertaining to assessment year 2010-11 and it is directed against the order dated 20.2.2017 passed by the ld.
CIT(A)-1, Thane.
At the outset, we would like to mention here that neither the assessee nor his authorized representative appeared before this Tribunal when the 2 I.T.A. No.3514/Mum/2017 appeal was called for hearing nor any application seeking adjournment of the hearing was received in the office of the Tribunal despite service of notice through RPAD. Therefore, we proceed to dispose of the appeals of the assessee ex-parte after hearing the ld. DR.
2. Ground raised by the revenue is against the restriction of disallowance from Rs.53,36,903/- to Rs.9,03,771/- by estimating the profit @8% of the total turnover.
3. Facts of the case are the assessee filed return of income on 26.9.2010 declaring a total income of Rs.2,84,000/-. The return was processed u/s 143(1) of the Act. Thereafter AO received the information from the DGIT(Inv)Mumbai who in turn got an information from Sales Tax Department, Pune, Government of Maharashtra that the assessee had taken accommodation entries of purchases amounting to Rs.30,25,627/- during FY 2009-10 from seventeen parties whose names as stated in the assessment order at pages 2 and 3. In view of this development, the AO was of the opinion that income has escaped assessment for the AY 2010-11. Accordingly he issued notice u/s 148 of the Act . In reply to the notice u/s 148 of the Act the assessee submitted to treat the I.T return filed originally as return in response of notice u/s 148 of the Act. During the course of re- assessment proceedings, the assessee denied all the allegations made by the 3 I.T.A. No.3514/Mum/2017 AO in notice by submitting that all the purchases were genuine and payments were made by banking channels. It was also submitted by the assessee that all the entries have been accounted for and material purchased from these was received and sold to the customers thereby accounting for duly all the purchases and sales. The AO also called for the party-wise details of purchases from the assessee beside other details. The AO observed that the assessee purchased material from these parties whose names were listed in the website of Sales Tax Department, GOM as a suspicious dealers, supplying bogus bills to the parties without providing actual and physical delivery of the material. According to the AO despite sufficient opportunities to the assessee, the assessee failed to file any of the information as called for by the AO and framed opinion that the assessee has no explanation to offer in this regard. The assessee, vide letter dated 5.1.2015 was also granted one more opportunity to show cause as to why the addition of Rs.30,25,,627/- should not be disallowed and added back to the total income. Ultimately the AO not convinced as to the genuineness of the purchases added Rs. 30,25,627/- to the total income of the assessee.
4. With regard to the addition of Rs.23,11,276/-, the AO observed that the assessee has credited gross receipt of Rs.1,48,67,648/- against which the assessee debited an expenditure of Rs.1,45,82,008/-,which were not supported by any documentary evidences and could not be unverified. The 4 I.T.A. No.3514/Mum/2017 AO in order to arrive at correct profit, disallowed expenses at the rate of 20% expenses of Rs.1,15,56,381/- which was calculated by subtracting the addition for the bogus purchases from the total expenditure .i.e (145,82,008- 30,25,627/-) and accordingly added Rs.23,11,276/- to the total income. Thus the AO disallowed and added total amount of Rs.53,36,903/- assessing the total income at Rs.56,20,900/- in the assessment framed u/s 143(3) r.w.s. 147 of the Act. Aggrieved by the order of the AO, the assessee preferred appeal before the FAA.
5. The ld. CIT(A) also observed that addition of unproved purchases amounting to Rs.30,25,627/- and disallowance of expenses amounting to Rs.23,11,276/- have resulted into the net profit of the assessee being Rs.56,22,543/- i.e. 37% which is unrealistically high. The ld.CIT(A) after rejecting the books of accounts u/s 145(3) , invoked the provisions of section 44AD of the Act and estimated the addition at the rate of 8% of the total turnover. The ld.CIT(A) also observed that in assessment year 2011-12 also the books of accounts were rejected u/s 145(3) of the Act and applied net profit rate at 8% in the appellate order. Accordingly, the ld.CIT(A) calculated net profit of Rs.11,89,411/- on the turnover of Rs.1,48,67,648/-. Since the assessee has already declared profit of Rs.2,85,640/- and balance amount of Rs.9,03,771/- was directed to be added to the total income of the assessee. Hence by taking a consistent view to that of assessment year 2011-12 partly 5 I.T.A. No.3514/Mum/2017 allowed the appeal of the assessee. Aggrieved by the order of ld.CIT(A), the Revenue is in appeal before us.
6. After hearing the ld.DR and on perusal of the record we find that the assessee undoubtedly has availed hawala entries from the 17 parties mentioned hereinabove and is a beneficiary of bogus purchases. The first appellate authority rejected the books of accounts u/s 145(3) of the Act and estimated the income at 8% of the total turnover by citing that the in assessment year 2011-12 under similar facts the books of the assessee were rejected and income was estimated at 8% of the turnover. Having considered all the facts of the case, we are of the opinion that the ld CIT(A) has taken a very reasonable view consistent with that of assessment year 2011-12. Therefore, we are inclined to uphold the same and the appeal of the revenue is dismissed.
7. In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open court on 26th Oct, 2017.
Sd sd (D.T.GARASIA) (RAJESH KUMAR) Judicial Member Accountant Member मुंबई Mumbai; ददन ुंक Dated :. 26th Oct 2017 Sr.PS:SRL:
आदे श की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to :
1. अपीऱाथी / The Appellant
2. प्रत्यथी / The Respondent 6 I.T.A. No.3514/Mum/2017
3. आयकर आयुक्त(अपीऱ) / The CIT(A)
4. आयकर आयुक्त / CIT - concerned
5. ववभागीय प्रतततनधि, आयकर अपीऱीय अधिकरण, मंब ु ई / DR, ITAT, Mumbai
6. गार्ड फाईऱ / Guard File आदे श नस र/ BY ORDER, True copy उि/सह यक िुंजीक र (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, मंब ु ई / ITAT, Mumbai