TaxTMI 
TaxTMI 
2022 (3) TMI 169
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct and also on the merits, we find that the assessee has raised one crucial ground vide ground No. 3 that notice under section 143(2) of the Act was not served on him before the completion of assessment proceedings within the prescribed time. Since, this is the jurisdictional issue, we deem it fit to address the same first. 3. We have heard rival submissions and perused the materials available on record. We find that assessee is a wholesaler of building materials and had filed his original return of income on September 30, 2009 declaring total income of Rs. 3,06,932, which was duly processed under section 143(1) of the Act. Later, based on the information received from Sales Tax Department of Government of Maharashtra by Director General of Income-tax (Investigation), Mumbai which was eventually passed on to the Assessing Officer concerned, the case of the assessee was reopened under section 147 of the Act. Notice under section 148 of the Act was issued on March 14, 2014. In response to the said notice, the assessee filed a reply stating that the return filed on September 30, 2009 already may be treated as return in response to notice under section 148 of the Act. Though it has be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....see are allowed. 3.1. In the result, the appeal of the assessee is allowed for the assessment year 2009-10. I. T. A. No. 5205/Mum/2018 (assessment year 2010-11) and I. T. A. No. 5206/Mum/2018 (assessment year 2011-12) 4. We find that the assessee has challenged the disallowance made on account of bogus purchases wherein the profit percentage embedded in the value of such purchases has been estimated by both the lower authorities for both the years under consideration. 4.1. We find that the assessee has made purchases of Rs. 9,51,779 from M/s. Dimple Enterprises (PAN No. AABPM5796N) in the assessment year 2010-11 and Rs. 12,25,203 from the same party in the assessment year 2011-12. Since this party was reflected as a tainted dealer in the website of Government of Maharashtra, Sales Tax Department, the case of the assessee was reopened on the information by the Director General of Income-tax (Investigation) which eventually was passed on to the learned Assessing Officer concerned. In reassessment proceedings, the learned Assessing Officer sought to verify the veracity of the purchases made from the assessee from M/s. Dimple Enterprises. The learned Assessing Officer issued notice....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssment. 4.2. This profit percentage was restricted to 12.5 per cent. for both the years by the learned Commissioner of Income-tax (Appeals). Aggrieved by the said order, only the assessee is in appeal before us. 4.3. It is not in dispute that the assessee has filed all the relevant documents to prove the genuineness of the purchases made from M/s. Dimple Enterprises for both the years under consideration. It is not in dispute that the corresponding sales made by the assessee out of the disputed purchases from Dimple Enterprises have not been doubted by the Revenue. It is not in dispute that section 133(6) notice issued by the learned Assessing Officer had been duly served on the said supplier at the address given by the assessee. We hold that if the said notice under section 133(6) of the Act had not been responded by the said supplier, then the learned Assessing Officer should have issued summons under section 131 of the Act by enforcing the attendance of the said supplier and got all the requisite details from the said supplier. The assessee from its side had discharged its onus by filing all the relevant documents together with the confirmation from the said supplier including....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d two parties from whom the said purchases were made, to which there was no response. The Assessing Officer primarily relying on the information obtained from the Sales Tax Department and sworn statements given before the Sales Tax Department by Sri Pradeep Vyas of M/s. Victor Intertrade P. Ltd. and Shri Ketan Shah of M/s. Impex Trading Company held the said purchases to be bogus. While it may be true that the said two purchase parties did not appear before the Assessing Officer, for whatever reasons, the fact remains that the assessee itself had fled copies of purchase bills, copies of purchase/sale invoices, challan-cum-tax invoices in respect of purchases, extracts of stock ledgers showing entry/exit of materials ; copies of bank statements to evidence that payment from these purchases were made through normal banking channels, etc. to establish the genuineness of the said purchases. It is a fact evident on record that the Assessing Officer has not doubted the sales effected by the assessee and therefore it is in order to conclude that without corresponding purchases being effected, the assessee could not have made sales. 4.4.2 In our considered view, the Assessing Officer has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the decisions of, inter alia, the hon'ble Bombay High Court in the cases of CIT v. Nikunj Eximp Enterprises Pvt. Ltd. [2015] 372 ITR 619 (Bom), Ashish International (supra), the decision of the co-ordinate Benches of this Tribunal in the case of Hiralal Chunilal Jain v. ITO (I. T. A. No. 4547/Mum/2014, dated January 1, 2016) and Imperial Imp and Exp v. ITO (I. T. A. No. 5427/Mum/2014, dated March 18, 2018. In this factual matrix of the case, as discussed above, we find no requirement for interference in the order of the learned Commissioner of Income-tax (Appeals) and consequently uphold the same. Therefore, the Revenue's five grounds (i) to (vii) are dismissed. In the result, the Revenue's appeal for the assessment year 2010- 11 is dismissed. Order pronounced in the open court on November 16, 2016.' 17.1. Thus, from the above, it is seen that the Tribunal had returned a finding of fact that the assessee had fled copies of purchase bills, copies of purchase/sale invoices, challan-cum-tax invoices in respect of the purchases, extracts of stock ledger showing entry/exit of the materials purchased, copies of bank statements to show that payment for such purchase....