Commissioner Of Income Tax Gandhinagar v. Aashadeep Industries

C/TAXAP/606/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 606 of 2018With R/TAX APPEAL NO. 607 of 2018With R/TAX APPEAL NO. 608 of 2018With R/TAX APPEAL NO. 609 of 2018With R/TAX APPEAL NO. 610 of 2018With R/TAX APPEAL NO. 611 of 2018With R/TAX APPEAL NO. 618 of 2018With R/TAX APPEAL NO. 619 of 2018With R/TAX APPEAL NO. 620 of 2018 ==========================================================COMMISSIONER OF INCOME TAX GANDHINAGARVersusAASHADEEP INDUSTRIES ========================================================== Appearance:MRS MAUNA M BHATT(174) for the PETITIONER(s) ========================================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAHandHONOURABLE MR.JUSTICE A.Y. KOGJE Date : 18/06/2018COMMON ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned Income Tax Appellate Tribunal (“ITAT”) in Income Tax Appeal No.1693/2014 for A.Y. 2007-08 by which the learned ITAT has dismissed the said appeal preferred by the assesee – M/s.Aashadeep Industries and has confirmed the order passed by the learned Commissioner of Income Tax (Appeals) [“CIT(A)”], restricting disallowance to 25% of the bogus purchases, the Revenue has preferred Tax Appeal No.606/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT” in Income Tax Appeal No.2040/2014 for A.Y. 2007-08 by which the learned ITAT has dismissed the said appeal preferred by the Revenue and has confirmed the order passed by the learned CIT(A), restricting disallowance to 25% of the bogus purchases, the Revenue has preferred Tax Appeal No.607/2018, with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.793/2013 for A.Y. 2008-09 by which the learned ITAT has allowed the said appeal preferred by the assesee – M/s.Aashadeep Industries and has confirmed the order passed by the learned CIT(A), and has restricted the disallowance to 25% of the bogus purchases, the Revenue has preferred Tax Appeal No.608/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.794/2013 for A.Y. 2009-10 by which the learned ITAT has partly allowed the said appeal preferred by the assesee – M/s.Aashadeep Industries and has restricted the disallowance to 25% of the bogus purchases, the Revenue has preferred Tax Appeal No.609/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases for A.Y.r 2009-10 after categorically finding it to be bogus in its composite order for A.Y.r. 2007-08 to 2009-10?” Feeling aggrieved and dissatisfied by the impugned Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.794/2013 for A.Y. 2009-10 by which the learned ITAT has partly allowed the said appeal preferred by the assesee – M/s.Aashadeep Industries and has restricted the disallowance to 25% of the bogus purchases, the Revenue has preferred Tax Appeal No.609/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases for A.Y.r 2009-10 after categorically finding it to be bogus in its composite order for A.Y.r. 2007-08 to 2009-10?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.948/2012 for A.Y. 2008-09 by which the learned ITAT has dismissed the said appeal preferred by the Revenue and has confirmed the order passed by CIT(A), restricting disallowance to 25% of the total bogus purchases, the Revenue has preferred Tax Appeal No.610/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases amounting to Rs.52,37,419/- after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.1460/2012 for A.Y. 2008-09 by which the learned ITAT has dismissed the said appeal preferred by the assesee – M/s.Deep Cotton Industries and has confirmed the disallowance restricting to 25% of the total bogus purchases, the Revenue has preferred Tax Appeal No.611/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases amounting to Rs.52,37,419/- after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.1694/2014 for A.Y. 2007-08 by which the learned ITAT has dismissed the said appeal preferred by the assesee – M/s.Prakash Industries and has confirmed the order passed by the CIT(A) restricting disallowance to 25% of the total bogus purchases, the Revenue has preferred Tax Appeal No.618/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.2039/2014 for A.Y. 2007-08 by which the learned ITAT has dismissed the said appeal preferred by the Revenue and has confirmed the order passed by the CIT(A) restricting disallowance to 25% of the total bogus purchases, the Revenue has preferred Tax Appeal No.619/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.791/2013 for A.Y. 2008-09, by which the learned ITAT has allowed the said appeal preferred by the assesee – M/s.Prakash Industries and has confirmed the order passed by the learned CIT(A), and has restricted the disallowance to 25% of the bogus purchases, the Revenue has preferred Tax Appeal No.620/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned ITAT in Income Tax Appeal No.791/2013 for A.Y. 2008-09, by which the learned ITAT has allowed the said appeal preferred by the assesee – M/s.Prakash Industries and has confirmed the order passed by the learned CIT(A), and has restricted the disallowance to 25% of the bogus purchases, the Revenue has preferred Tax Appeal No.620/2018 with the following proposed question of law: “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” At the outset, it is required to be noted that the Revenue has wrongly preferred/ filed Tax Appeals No.606/2018, 611/2018 and 618/2018 as these appeals arise out of the judgment and order passed by the learned Tribunal dismissing the assessees' appeals. It is also required to be noted that in all these appeals, the learned CIT(A), in the case of respective assessees for respective Assessment Years, has restricted the disallowance to 25% of the total bogus purchases. However, according to the assessees, it should have been 5% of the total bogus purchases and therefore, the assessees had preferrd appeals before the learned Tribunal and the learned Tribunal has confirmed the respective orders passed by the CIT(A) restricting disallowance to 25% of the total bogus purchases. It is true that according to the Revenue, 100% of the total bogus purchases ought to have been disallowed. However, the same is the subject-matter of the other appeals preferred by the Revenue which shall be dealt with hereinafter. As these three appeals arise out of the impugned judgment and order passed by the learned Tribunal dismissing the assessees’ appeals, the Revenue cannot be said to be aggrieved by the said decision dismissing the assessees’ appeals. Therefore, the present three appeals, being Tax Appeals No.606/2018, 611/2018 and 618/2018 stand dismissed on the ground that the Revenue cannot be said to be aggrieved by the said decision of the Tribunal. However, the same shall be without prejudice to the rights and contentions of the Revenue in other appeals in which it is the case on behalf of the Revenue that in fact, there shall be disallowance of 100% of the total bogus purchases. Now so far as remaining appeals, i.e. Tax Appeals No.607/2018, 608/2018, 609/2018, 610/2018, 619/2018 and 620/2018 are concerned, Mrs.Mauna Bhatt, learned counsel has appeared on behalf of the Revenue in the remaining Tax Appeals in which it is the case on behalf of the Revenue that the learned CIT(A) as well as the learned Tribunal ought to have allowed disallowance of 100% of the total bogus purchases. Having heard Mrs.Mauna Bhatt, learned counsel appearing on behalf of the Revenue,Tax Appeals No.607/2018, 608/2018, 609/2018, 610/2018, 619/2018 and 620/2018 are admitted to consider the following question of law:- “Whether the Appellate Tribunal has erred in law and on facts of the case in restricting the addition to 25% of the value of alleged purchases after categorically finding it to be bogus?” sd/- (M.R. SHAH, J) sd/- sunil (A.Y. KOGJE, J)