Suresh Nagori, Pune V. Deputy Commissioner of Income tax, Pune

ITA 1034/PUN/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7719 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 25-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V L JAIN
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice; Accommodation entries

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . . . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS. 1030 TO 1035/PUN/2017 / ASSESSMENT YEARS : 2006-07 TO 2011-12 SHRI SURESH NAGORI, PROP. CHANDAN MARBLES, S.NO.134/4, OPP. FOREST PARK, NEAR YADAV PETROL PUMP, NAGAR ROAD, PUNE 411004 PAN : AJEPM3193P . / APPELLANT V/S DCIT, CIRCLE - 2 , PUNE . / RESPONDENT ASSESSEE BY : SHRI V.L. JAIN REVENUE BY : SHRI AJAY MODI / ORDER PER BENCH : THERE ARE SIX APPEALS UNDER CONSIDERATION COVERING THE ASSESSMENT YEARS 2006-07 TO 2011-12. ALL THE APPEALS ARE FILED BY T HE SAME ASSESSEE. THEY ARE AGAINST THE ORDERS OF CIT(A)-5, PUNE COMMONLY DATED 10-01-2017. 2. THE COMMON ISSUE RAISED IN THE ABOVE APPEALS REL ATE TO REJECTION OF BOOKS OF ACCOUNT AND THE ESTIMATION OF GROSS PROFITS. IN THE GROUNDS, ASSESSEE RAISED THE ISSUE RELATING TO PRINCIPLES OF NATURAL JUSTICE . IN GROUND NO.2(A) IT WAS MENTIONED THAT THE CIT(A) DID NOT GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE THEREBY CAUSED VIOLATION TO THE LAW S OF PRINCIPLES OF NATURAL JUSTICE. / DATE OF HEARING : 22.08.2017 / DATE OF PRONOUNCEMENT:23.08.2017 2 ITA NOS.1030 TO 1035/PUN/2017 SHRI SURESH NAGORI 3. THESE ARE THE APPEALS HEARD BY THE CIT(A) IN THE ABSENCE OF ASSESSEE OR HIS REPRESENTATIVE. THE SAME IS EVIDENT ON THE CAU SE TITLE OF THE APPELLATE ORDERS. 4. FOR THE SAKE OF BASIC FACTS, WE FIND RELEVANT TO CULL OUT BASIC FACTS FOR ASSESSMENT YEAR 2006-07. THESE FACTS ARE HELPFUL F OR ADJUDICATION OF OTHER 5 ASSESSMENT YEARS TOO. BASIC FACTS RELEVANT TO THE ASSESSEE ON THE ISSUE INCLUDE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED THE RE TURN OF INCOME ON 30-10-2006 DECLARING TOTAL TAXABLE INCOME OF RS.7,49,716/-. S URVEY ACTION U/S.133A OF THE ACT WAS CARRIED OUT IN THE BUSINESS PREMISES OF M/S . CHANDAN MARBLES ON 22-10- 2012 CONSEQUENT TO THE INFORMATION FROM SALES TAX D EPARTMENT REGARDING OF ACCOMMODATION ENTRIES IN THE FORM OF BOGUS PURCHASE S BY M/S. CHANDAN MARBLES. AO CAME TO THE CONCLUSION THAT FINANCIALS OF THE ASSESSEE ARE GIVING ABSURD RESULTS SINCE ASSESSEE HAS NOT MAINTAINED AN Y STOCK REGISTER, ASSESSEE COULD NOT PROVIDE ANY DOCUMENTARY EVIDENCE TO PROVE THE GENUINENESS OF BOGUS PURCHASES, TURNOVER HAS BEEN INCREASED SUBSTANTIALL Y FROM A.Y.2006-07 RANGING FROM 1,28,38,515/- TO RS.9,74,96,624/-. EVENTUALLY , AO ASSESSED THE INCOME OF THE ASSESSEE AT RS.25,08,460/- ON ACCOUNT OF INADEQ UACIES IN THE BOOKS OF ACCOUNTS U/S.145(3) OF THE ACT. 5. HOWEVER, DURING THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) VIDE HIS EXPARTE ORDER DATED 10-01-2017 WITHOUT GOING INTO T HE MERITS OF THE CASE DISMISSED THE APPEAL ON ACCOUNT OF NON-ATTENDANCE/N ON-PROSECUTION BY THE ASSESSEE. AGGRIEVED WITH THE ORDER OF CIT(A) THE A SSESSEE IS IN APPEAL BEFORE US. 6. BEFORE US, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE IMPUGNED ORDERS FOR ALL THE SIX YEARS AND SUBMITTED THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE RELYING ON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH 3 ITA NOS.1030 TO 1035/PUN/2017 SHRI SURESH NAGORI COURT IN THE CASE OF M/S. CHEMIPOL VS. UNION OF IND IA AND OTHERS AND THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF CIT VS. M/S. MULTIPLAN INDIA PVT. LTD. 38 ITD 320 (DEL.). IT IS ALSO MENTIONED THAT THE CIT(A) DID NOT ADJUDICATE THE ISSUES ON MERITS AND VIOLATED THE EX PRESSLY MENTIONED PROVISIONS OF SECTION 250(6) OF THE ACT. CONSIDERING ALL THES E DEVELOPMENTS, IT IS THE COUNSELS REQUEST THAT ALL THESE SIX APPEALS SHOULD BE REMANDED TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. LD. COUNSEL MADE A STATEMENT AT THE BAR THE ASSESSEE SHALL APPEAR THIS TIME BEFORE THE CIT(A). 7. ON HEARING BOTH THE PARTIES AND CONSIDERING THE LD. COUNSELS STATEMENT AT THE BAR, WE ARE OF THE VIEW THAT ORDER PASSED BY THE CIT(A) IS NOT SUSTAINABLE IN LAW. THUS, AS REQUESTED BY THE LD. AUTHORISED R EPRESENTATIVE, IN OUR VIEW, IT IS A FIT CASE FOR REMANDING ALL THE APPEALS OF THE ASSESSEE TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. WE ORDER ACCORDINGLY. IN THE ASSESSMENT PROCEEDINGS, CIT(A) IS DIRECTED TO GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASS A SPEAKING ORDER IN ACCORDANCE WITH THE PR OVISIONS OF SUB-SECTION (6) OF SECTION 250 OF THE ACT. ACCORDINGLY, WITHOUT GOING INTO THE MERITS OF THE GROUNDS, WE ALLOW ALL THE GROUNDS RAISED IN ALL THE SIX APPEALS UNDER CONSIDERATION FOR STATISTICAL PURPOSES. 8. IN THE RESULT, ALL THE SIX APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF AUGUST, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 23 RD AUGUST, 2017. 4 ITA NOS.1030 TO 1035/PUN/2017 SHRI SURESH NAGORI / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. THE CIT(A) - 5, PUNE THE CIT-5, PUNE 5. % , , B BENCH PUNE; 6. / GUARD FILE.