SIDDHARTH STRUCTURALS MUMBAI vs ITO-29(3)(4) MUMBAI

आयकर अपीलीय अधिकरण “SMC” न्यायपीठ म ुंबई में। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI श्री भहावीय स िंह, उऩाध्मक्ष के भक्ष । BEFORE SRI MAHAVIR SINGH, VICE PRESIDENT Aayakr ApIla saM./ ITA No.

4414/Mum/2019 (inaQa-arNa baYa- / Assessment Year 2010-11) M/s.

Siddharth Structurals 307, Gala Commercial Complex, Dr.

Dindayal Upadhyay Marg, Mulund (West), Mumbai-400 080 Vs.

The Income Tax Officer Ward-29(3)(4), 205, C-10, Bandra Kurla Complex, Pratyakshakar Bhavan, BKC, Bandra (E)-400 051 (ApIlaaqaI- / Appellant) .. (p`%yaqaaI- / Respondent) स्थामी रेखा िं./PAN No.

ABKFS5656B अऩीराथी की ओय े / Appellant by : Ms.

Radha Halble, AR प्रत्मथी की ओय े / Respondent by : Shri V.K.

Chaturvedi, DR स नवाई की तारीख / Date of hearing: 07.10.2021 घोषणा की तारीख / Date of pronouncement : 07.10.2021 AadoSa / O R D E R भहावीय स िंह, उऩाध्मक्ष के द्वाया / PER MAHAVIR SINGH, VP: This appeal of the assessee is arising out of order of the Commissioner of Income Tax (Appeals)]-33, Mumbai [in short CIT(A)], in appeal No.

CIT(A)-33/Rg.21/113/2015-16 vide dated 28.08.2017.

The Assessment was framed by the Income Tax Officer, Ward-21(3)(3) Mumbai (in short ITO/ AO) for the A.Y.

2009-10 vide order dated 09.03.2015 under section 143(3) read with section 263 of the Income-tax Act, 1961 (hereinafter ‘the Act’).

2.

The only issue in this appeal of assessee is against the order of CIT(A) in confirmed the addition made by the Assessing Officer by applying profit rate at the rate of 12.5% of the alleged bogus.

For this assessee has raised the following ground:- 2 ITA No.

4314/Mum/2019 M/s.

Siddharth Structurals; AY 10 -11 “3.

In facts and in the circumstances of the case and in law, the learned CIT(A)-40, Mumbai has erred in upholding the adhoc addition of rs.10,68,861/- being 12.5% of alleged bogus purchases of ₹85,50,886/-, merely on surmises and conjectures.” 3.

Briefly stated facts are that the assessee engaged in the business of trading and whole selling of Iron and steel. and steel.

The AO received information from DGIT (Investigation), who in turn received information from Sales Tax Department, Mumbai that the assessee has made purchases from hawala parties, as listed by the Maharashtra Sales Tax Department who are providing bogus bills of purchase, including assessee amounting to Rs.

85,50,886/-, as admitted by these hawala dealers in their deposition before the authorities.

The bogus bill obtained by assessee are as under: - Name of party Amount Parshva & Co 13,14,641 Renuka Sales corporation 3,31,425 Rekha Trading Co 13,17,833 Shyam Corporation 3,01,546 Daksha Enterprises 6,20,591 Amar Enterprises 6,94,865 Mercury Enterprises 3,30,850 Prayosha Trading Co 6,42,303 Shraddha Trading Co 7,17,450 MR corporation 22,79,382 Total 85,50,886 4.

During the course of assessment proceedings and during appellate proceedings, the assessee submitted all the documentary evidences such as Tax invoice purchases, bank statement highlighting the payments made to so called hawalla parties, the statement showing details of hawala purchases and 3 ITA No.

Siddharth Structurals; AY 10 -11 corresponding payments, the statements showing details of purchases and its corresponding sales.

According to the AO, the assessee failed to establish the genuineness of the purchase in absence of delivery challans, octroi receipt and transport receipt of the purchases and accordingly, he made addition of unproved purchase at 12.5% of ₹ 10,68,861/- to the return income of the assessee.

Aggrieved, assessee preferred the appeal before CIT(A), who confirmed the disallowance made by the Assessing Officer by observing as under: - “4.

Decision: I have gone through the reasons recorded by the AO and the submission made by the appellant.

The Ld.

AO made an addition of Rs.10,68,861/- on account of gross profit estimated at 12.5% on the sales made by the appellant out of alleged bogus purchases made from hawala parties amounting to Rs. ing to Rs.85,50,886/- from the following parties enlisted as under: Name of party Amount Parshva & Co 13,14,641 Renuka Sales corporation 3,31,425 Rekha Trading Co 13,17,833 Shyam Corporation 3,01,546 Daksha Enterprises 6,20,591 Amar Enterprises 6,94,865 Mercury Enterprises 3,30,850 Prayosha Trading Co 6,42,303 Shraddha Trading Co 7,17,450 MR corporation 22,79,382 Total 85,50,886 The Ld.

AO on receipt of information from the Sales Tax Department and DGIT(Inv.), Mumbai, that the appellant, M/s.

Siddharth Structurais made bogus / non-genuine purchases to the tune of Rs,85,50,886/- from the parties mentioned above.

4 ITA No.

Siddharth Structurals; AY 10 -11 The Ld.AO issued notices u/s.!

133(6) to the above parties but the same have been returned 'unserved' by the postal authorities, The AR of the appellant, during the course of appellate proceedings could not furnish the details of the parties as well as produce before the Ld.AQ for examination, thus, the Ld.AO held the above parties as bogus and estimated the profit t 12.5% being the profit embedded in the corresponding sales out of the bogus purchases based on the above judicial precedence of Hon'ble Gujarat High Court in Simit P.

Seth and also in the case of Bhola Nath Poly Fab (P) Ltd. and hence the decision of the Ld.

AO is hereby confirmed and the reliance placed on case laws by the AR of the appellant are not particularly relevant and are distinguishable to the facts of the case.

In the result, the appeal filed by the appellant is Dismissed confirming the addition made by the Ld.

AO.” Aggrieved, assessee is in appeal before me.

5.

I find that this issue is squarely covered in assessee’s own case for earlier Assessment Years i.e.

Assessment Year 2009-10 in ITA No.

1607/Mum/2017 order dated 05.12.2017, wherein Tribunal has estimated profit on bogus purchases at 10% of GP by observing vide Para 5 as under: - “5. der: - “5.

I have considered rival contentions and gone through the orders of the authorities below.

As per the reasons recorded and material brought on record, I do not find any infirmity in the reopening of the assessment.

With regard to merit of addition, I found that assessee is dealing in Iron and Steel and had shown GP of 3.4% during the year.

As per learned AR normal GP rate in case of 5 ITA No.

Siddharth Structurals; AY 10 -11 Iron and Steel is 3 to 3.5%.

Keeping in view totality of facts and circumstances of the case, I restrict the addition to the extent of 10% of the GP on the alleged bogus purchases.

I direct accordingly.” 6.

In view of the above, I direct the AO to re-compute the profit on bogus purchases by estimating the profit rate at 10%.

7.

In the Result, the appeal of assessee is partly allowed as indicated above.

Order pronounced in the open court on 07.10.2021.

Sd/- (भहावीय स िंह /MAHAVIR SINGH) (उऩाध्मक्ष / VICE PRESIDENT) भ िंफई, ददनािंक/ Mumbai, Dated: 07.10.2021 सुदीप सरकार, व.निजी सचिव / Sudip Sarkar, Sr.PS आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : 1. अऩीराथी / The Appellant 2. प्रत्मथी / The Respondent.

3. आमकय आम क्त(अऩीर) / The CIT(A) 4. आमकय आम क्त / CIT 5. ववबागीम प्रतततनधध, आमकय अऩीरीम अधधकयण, भ िंफई / DR, ITAT, Mumbai 6. गार्ड पाईर / Guard file. आदेशािुसार/ BY ORDER, त्मावऩत प्रतत //True Copy// उप/सहायक पंजीकार (Astt.

Registrar)/ व.निजी सचिव (Sr.PS) आयकर अपीऱीय अचिकरण, भ िंफई / ITAT, Mumbai