2017 (12) TMI 1480

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....nt 1) The learned Commissioner of Income Tax (Appeals) - 29, Mumbai [CIT(A)] erred on facts and in law in holding that the Income Tax Officer -18(1)(2), Mumbai (AO) was justified in reopening the assessment u/s. 147. 2) The CIT(A) erred on facts and in law in holding that the reopening of assessment by the AO by issuing a Notice u/s. 148 in the name of Late Shri Bhupendra Joshi was valid and as per law. 3) The appellant prays that the reopening of assessment u/s. 147 may be held to be bad in law and the consequential order assessing the income of the appellant u/s. 144 r.w.s. 147 at Rs. 38,32,045/- may be annulled. B) Estimating profit on alleged bogus purchases 4) The learned CIT(A) erred on fac....

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.... been carefully considered but there is no force in the argument. The AO had issued .2 notice u/s.148 in the name of Shri. Bhupendra IM. Joshi as he had no information about his death. The notice was issued on 21.3.2014 whereas the appellant Shri. Bhupendra Joshi expired on 2.7.2011. The date of death as per the death certificate submitted by the Ld. Counsel for the assessee is 2.7.2011 whereas in the entire submissions, he had mentioned that the date of death is 2.2.2011. There is a time lag of almost 3 years between his death and issue of notice u/s.148. The legal heirs of Shri. Bhupendra Joshi have not bothered to inform the department about the death. The AO cannot be blamed for issuing the notice in the name of Shri. Bhupendra Joshi as....

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....irmity in the order. Simple error in the letters which were addressed to Bhupendra Joshi cannot invalidate the assessment order. As could be seen, the Ld, Counsel for the assessee has not even mentioned the date of death correctly. Even the legal heir has mentioned wrong date of death. These are ignored and overlooked as they are trivial errors and what is important is substance. The Ld. Counsel for the assessee also relied upon a few judgments to support his case. The first case is CIT vs. Surendrakumar Bhadani 164 ITR 323, Patna. The facts of this case are different from the present case and infact this case is in favour of revenue. This is a case where two parallel proceedings were initiated u/s,147 and the court held that the p....

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....e but on the munim of the deceased assessee. Therefore the court held that the notice was invalid. In the present case, the notice has been served on the legal heir and further correspondence was made with the legal heir and the assessment was also completed in the name of the legal heir. It is noteworthy to mention that both in the grounds of appeal and the statement of facts, late Shri. Shuperidra Joshi is shown as the appellant and not Smt. Bhavana B. Joshi as legal heir of the deceased assessee. But an objection is taken when the AO does it. In view of the above, the proceedings u/s.147 initiated by the AO are held to be legal and valid. These grounds of appeal are dismissed." 7. I found that CIT(A) has deliberated on the issue threa....

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.... by account payee cheques and hence no addition could be made on account of extra profits with respect to the alleged bogus purchases. The primary onus to prove the genuineness of the purchases is on the assessee. In this case, the assessee has miserably failed to prove the genuineness as the legal heir could not produce any information what so ever regarding the business. On the other hand, the sales tax authorities had passed on the information that all hawala entry providers have admitted before the sales-tax department that they have not affected any sales but have merely provided accommodation entries. The AO therefore concluded that the purchases must have been made from the grey market and the assessee must have benefited by profit m....

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.... there cannot be a uniform profit margin for all the business. In this case, it is felt reasonable to estimate the G.P. @10% of the alleged bogus purchases. The AO is further directed to reduce the GP already declared by the appellant on these purchases. 7. The last ground of appeal is that the above grounds of appeal are without prejudice to one another and the appellant craves leave to add, alter, amend, delete or modify any of the above grounds of appeal. 7.1. No such option has been exercised by the appellant during the appeal proceedings. Therefore, it is clear that this ground of appeal is academic in nature and no decision is required in respect of this ground of appeal. For statistical purpose, this should be taken....