Income Tax Appellate Tribunal - Ahmedabad
Rolex Tin Works, Prop.Of Shri ... vs Assessee on 30 April, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL,
" D " BENCH, AHMEDABAD
Before Shri A. K. GARODIA, ACCOUNTANT MEMBER
and Shri KUL BHARAT, JUDICIAL MEMBER
I.T.A. No.652, 653 / Ahd/2009
(Assessment year 2003-04, 2004-05)
M/s. Rolex Tin Works, Vs. ITO, Ward 5(4),
Prop. of Shri Husainbhai Vadodara
Mohmadbhai Karwaniya,
Near P G Textile Mill,
Yakutpura, Baaroda
PAN/GIR No. : ADSPK 2695L
(APPELLANT) .. (RESPONDENT)
Appellant by: Shri Anil shah, AR
Respondent by: Shri B L Yadav, Sr. DR
Date of hearing: 30.04.2012
Date of pronouncement: 30.04.2012
ORDER
PER SHRI A. K. GARODIA, AM:-
Both these appeals are filed by the assessee which are directed against two separate orders of Ld. CIT(A) V, Baroda both dated 08.12.2008 for the assessment years 2003-04 and 2004-05. For the sake of convenience, both these appeals were heard together and are being disposed off by way of this common order.
2. In both these years, two issues are raised by the assessee. One is regarding reopening as per grounds No.1-4 and the other is regarding merit of the addition made by the A.O. and partly confirmed by Ld. CIT(A) as per ground No.5 in both the years. Ld. A.R. did not press the 2 I.T.A.No. 652,653 /Ahd/2009 first issue i.e. regarding validity of reopening as per grounds No.1-4 in both these years and hence, these grounds are rejected as not pressed in both these years.
3. As per ground No.5 on merit, Ld. CIT(A) has confirmed the addition of Rs.1 lacs out of total addition made by the A.O. of Rs.4 lacs in assessment year 2003-04 and in assessment year 2004-05, CIT(A) has confirmed addition of Rs.1,12,768/- as against the total addition made by the A.O. of Rs.4,51,070/-. In both these years, Ld. CIT(A) has confirmed the addition to the extent of 25% of the total alleged bogus purchases by the assessee. Now, the assessee is in further appeal before us.
4. It was submitted by the Ld. A.R. that in the case of ITO Vs Shri Satyanarayan P Rathi in I.T.A.No. 3407/Ahd/2009 and 46&47/Ahd/2010 dated 10.02.2012, the Tribunal has held that the addition/disallowance to the extent of 12.5% on account of bogus purchases will meet the ends of justice. He further submitted that copy of this tribunal order is available on pages 11-17 of the supplementary paper book. He also submitted that in that case also, the names of parties from whom the material was purchased by that assessee were the same i.e. M/s. Girnar Sales Corporation and M/s. Shiv Metal Corporation. He further submitted that in that case also, the tribunal has considered this tribunal decision also which is followed by Ld. CIT(A) in the present case i.e. the Tribunal decision rendered in the case of Vijay Proteins Ltd. as reported in 58 ITD 528 and even after considering this Tribunal decision, as against 25% addition, the Tribunal upheld the addition @ 12.5% only because in that case, it is noted by the tribunal that books of account were maintained by the assessee and were subjected to audit u/s 44AB. He further submitted that in the present case also, it is noted by Ld. CIT(A) that the assessee 3 I.T.A.No. 652,653 /Ahd/2009 has produced quantitative tally of the material purchased and material sold and the payments have been made through cheques from explained funds of the assessee.
5. As against this, Ld. D.R. supported the order of Ld. CIT(A). He further submitted that in the tribunal order cited by Ld. A.R., it is observed by the Tribunal that if the impugned addition made by the A.O. is upheld, the GP will be more than the sales itself and hence, this tribunal decision is not applicable in the present case.
6. We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below and the tribunal decision cited by the Ld. A.R. We find that in that case, the Tribunal has duly considered the tribunal decision rendered in the case of Vijay Proteins Ltd., (supra), which has been followed by Ld. CIT(A) and in that case, addition of 25% was upheld by the Tribunal. Regarding this argument of Ld. D.R. that if the addition made by the A.O. is upheld the GP will be more than the sales, we find that this observation is as per para 3 of the tribunal order rendered in the case of Anubhai Shivlal which was reproduced by the tribunal in the order rendered in the case of Shri Satyanarayan P Rathi (supra). In that order, the tribunal has considered another tribunal decision rendered in the case of Sankit Steel Traders in I.T.A.No. 2801 & 2937/Ahd/2008 dated 20.05.2011. In that case also, the allegation of bogus purchase was from the same two parties i.e. Girnar Sales Corporation and Shiv sales Corporation as in the present case, and in that case also, the tribunal upheld the addition @ 12.5% only on the alleged bogus purchase. Considering all these facts, and considering the finding of Ld. CIT(A) which could not be controverted by the Ld. D.R. that assessee has furnished quantitative details of material 4 I.T.A.No. 652,653 /Ahd/2009 purchased and material sold, we feel that addition of 12.5% of the alleged bogus purchase will meet the ends of justice in the present case and hence, we hold so by respectfully following the precedence cited by Ld. A.R. The A.O. is directed accordingly in both the years.
7. In the result, both these peals of the assessee are partly allowed.
8. Order pronounced in the open court on the date mentioned hereinabove.
Sd./- Sd./-
(KUL BHARAT) (A. K. GARODIA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Sp
Copy of the Order forwarded to:
1. The applicant
2. The Respondent
3. The CIT Concerned
4. The Ld. CIT (Appeals)
5. The DR, Ahmedabad By order
6. The Guard File
AR,ITAT,Ahmedabad
1. Date of dictation.........30/4.
2. Date on which the typed draft is placed before the Dictating Member...30/4....Other Member ............
3. Date on which the approved draft comes to the Sr. P.S./P.S.
4. Date on which the fair order is placed before the Dictating Member for pronouncement ............30/4
5. Date on which the fair order comes back to the Sr. P.S./P.S.30/4
6. Date on which the file goes to the Bench Clerk ...30/4/12
7. Date on which the file goes to the Head Clerk .......................
8. The date on which the file goes to the Assistant Registrar for signature on the order .........................
9. Date of Despatch of the order. ......................