M/s. N.B Bhondve Developers, Pune V. Income-tax Officer, Pune

ITA 1020/PUN/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8845 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 24-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Reopening of assessment
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 1 020 /PUN/201 7 / ASSESSMENT YEAR : 20 08 - 09 M/S. N.B. BHONDVE DEVELOPERS, S. NO. 49/5, N.B. ARCADE, PRADHIKARAN ROAD, AKURDI, PUNE 411035 PAN : AAPFM1172Q ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 9(3), PUNE / RESPONDENT ASSESSEE BY : S HRI KISHOR PHADKE REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 1 2 - 09 - 2019 / DATE OF PRONOUNCEMENT : 17 - 09 - 2019 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 05 - 05 - 2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 6 , PUNE FOR ASSESSMENT YEAR 20 08 - 09. 2 ITA NO.1020/PUN/2017, A.Y. 2008 - 09 2. WE FIND THIS APPEAL WAS FILED WITH A DELAY OF 659 DAYS. THE ASSESSEE FILED AN AFFIDAVIT DATED 24 - 04 - 2 017 DEPOSED BY THE PARTNER SHRI NANDKUMAR B. BHONDVE REPRESENTING THE ASSESSEE STATING REASONS THEREIN. ON PERUSAL OF THE REASONS CONTAINED IN AFFIDAVIT AND HEARING OF SUBMISSIONS OF BOTH THE PARTIES, WE FIND THE ASSESSEE HAS MADE OUT SUFFICIENT CAUSE FOR DELAY WHICH REALLY PREVENTED THE ASSESSEE TO FILE THE APPEAL IN TIME. THUS, THE DELAY OF 659 DAYS ARE CONDONED. 3. WE FIND THAT THE ASSESSEE RAISED AS MANY AS 8 GROUNDS AMONGST WHICH GROUND NO. 1 RAISED CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT U/S. 147 O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE LD. AR SHRI KISHOR PHADKE SUBMITTED THAT THE SAID ISSUE IS COVERED BY THE ORDERS OF THIS TRIBUNAL IN THE CASES OF ASSESSEES SISTER CONCERNS FOR ASSESSMENT YEAR 20 09 - 10 AND PRAYED TO TAKE UP THE GROUND NO. 1 AS PRELIMINARY ISSUE. THE LD. DR DID NOT REPORT OBJECTION IN TAKING UP THE GROUND NO. 1. THEREFORE, WE PROCEED TO HEAR BOTH THE PARTIES AND GROUND NO. 1 TREATED THE SAME AS PRELIMINARY ISSUE. 4. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE MAIN CONTENTION OF THE LD. AR SHRI KISHOR PHADKE IS THAT THERE IS VARIANCE IN FIGURES REFLECTED IN THE REASONS RECORDED AND THE ADDITION MADE IN THE ASSESSMENT. ON SIMILAR AND IDENTICAL FACTS THI S TRIBUNAL IN THE CASES OF M/S. N.D. CONSTRUCTIONS VS. INCOME TAX OFFICER IN ITA NO. 2068/PUN/2017 AND M/S. N.B. CONSTRUCTIONS VS. INCOME TAX OFFICER IN ITA NO. 2067/PUN/2017 DECIDED THE ISSUE AND HELD WHEN THERE ARE DISCREPANCIES IN REASONS RECORDED AND T HE ADDITIONS MADE AND SUCH 3 ITA NO.1020/PUN/2017, A.Y. 2008 - 09 ASSESSMENT IS INVALID . WE NOTE THAT, ON PERUSAL OF REASONS RECORDED IN THE PRESENT CASE WHICH IS PLACED AT PAGE 3 THAT THE ASSESSEE IS ALLEGED TO HAVE MADE HAWALA TRANSACTIONS IN RESPECT OF PURCHASE OF RAW MATERIAL AMOUNTING TO RS.20,33,316/ - AND THEREBY THE ASSESSING OFFICER FOUND REASONS TO BELIEVE THE SAID INCOME ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT , BUT, HOWEVER, IT IS NOTED FROM PARA 10 , THE ASSESSING OFFICER HELD THE TRANSACTIONS INVOLVING AN AMOU NT OF RS.66,22,988/ - IS BOGUS AND PROCEEDED TO DISALLOW THE SAID AMOUNT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE VIDE ASSESSMENT MADE U/S. 147 OF THE ACT. THEREFORE, IT IS CLEAR FROM THE RECORD THAT THERE IS VARIANCE IN AMOUNTS REFLECTED IN REASONS R ECORDED AS THE REASSESSMENT MADE THEREON. WHEREAS, ON PERUSAL OF ORDERS OF THIS TRIBUNAL AS MENTIONED ABOVE WHICH ARE PLACED AT PAGES 6 TO 23 IN THE PAPER BOOK, WE FIND THIS TRIBUNAL HELD THE REOPENING OF ASSESSMENT IS NOT MAINTAINABLE WHEN THERE ARE DISC REPANCIES IN AMOUNTS IN THE REASONS RECORDED FOR REOPENING ASSESSMENT AND THE ADDITION MADE IN THE HANDS OF THE ASSESSEE IN THE REASSESSMENT . WE FIND THE FACTS AND CIRCUMSTANCES IN THE PRESENT CASE ARE SIMILAR TO THE FACTS AND CIRCUMSTANCES IN THE CASES O F M/S. N.D. CONSTRUCTIONS AND M/S. N.B. CONSTRUCTIONS (SUPRA) ARE SIMILAR AND IDENTICAL. THEREFORE, REASSESSMENT MADE IN THE PRESENT CASE IS INVALID. THUS, GROUND NO. 1 RAISED BY THE ASSESSEE IS ALLOWED. 5. IN VIEW OF THE PRELIMINARY ISSUE AS WE DECID ED IN FAVOUR OF THE ASSESSEE IN GROUND NO. 1, ALL OTHER GROUNDS I.E. GROUND NOS. 2 TO 8 ARE BECOMES ACADEMIC , REQUIRES NO ADJUDICATION. THUS, GROUND NOS. 2 TO 8 RAISED IN THE APPEAL BY THE ASSESSEE ARE DISMISSED AS INFRUCTUOUS. 4 ITA NO.1020/PUN/2017, A.Y. 2008 - 09 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER, 2019. SD/ - SD/ - ( R.S. SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 17 TH SEPTEMBER, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 6 , PUNE 4. THE PR. COMMISSIONER OF INCOME TAX 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE