Mahesh Narayan Yande, Pune V. Deputy Commissioner of Income tax, Pune

ITA 1057/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2952 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 27-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MALVIYA
• Keywords: Bogus purchase; Principle of natural justice; Set aside
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY , JM . / I TA NO.1057 /PUN/20 17 / ASSESSMENT YEAR : 2012 - 13 MR. MAHESH NARAYAN YANDE, PROPRIETOR OF M/S. GAYO ENTERPRISES, SECTOR - 28, PLOT NO.234, PCNTDA PUNE - 411 044. PAN : AANPY5480D ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 10, PUNE. / RESPONDENT A SSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI ALOK MALVIYA / DATE OF HEARING : 11 .0 3 .2020 / DATE OF PRONOUNCEMENT : 12 .03 .2020 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS) - 13, PUNE DATED 13.01.2017 FOR THE ASSESSMENT YEAR 2012 - 13 AS PER THE GROUNDS OF APPEAL ON RECORD. 2 ITA NO. 1057 /PUN/20 17 A.Y. 2012 - 13 2. AT THE VERY OUTSET, WE NOTICE THAT THE ORDER PASSED BY THE LD. CIT(APPEALS) IS AN EX - PARTE ORDER AND NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE HAD APPEARED BEFORE THE LD. CIT(APPEALS) THOUGH S EVERAL OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE FOR HEARING WHICH IS EVIDENT FROM PARA 2.1.1 OF HIS ORDER. THEREFORE, THE LD. CIT(APPEALS) DID NOT HA D ANY OTHER OPTION BUT TO DECIDE THE APPEAL AS PER MATERIAL S AVAILABLE ON RECORD. 2.1 THE LD. CIT(APPEALS) REFERRED TO THE ASSESSMENT ORDER WHEREIN THE ASSESSING OFFICER FOUND THAT SIMILAR BOGUS TRANSACTIONS HAS BEEN TAKEN PLACE FOR ASSESSMENT YEARS 2010 - 11 AND 2011 - 12. THAT AS PER THE DETAILED REASONING APPEARING IN THE ORDER OF THE LD. CI T(APPEALS), HE DISMISSED THE APPEAL OF THE ASSESSEE. 3. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT FOR ASSESSMENT YEARS 2010 - 11 AND 2011 - 12 FOR WHICH REFERENCE HAS BEEN MADE IN THE ASSESSMENT ORDER AS WELL AS IN THE ORDER OF THE L D. CIT(APPEALS). T HE LD. CIT(APPEALS) FOR THOSE YEARS HAS RESTRICTED THE DISALLOWANCE S OF THOSE BOGUS PURCHASES TO THE EXTENT OF 15% OF SUCH PURCHASES. TO MEET THE ENDS OF JUSTICE, THE LD. AR OF THE ASSESSEE PRAYED THAT THE SAME DECISION MAY BE FOLLOWED FO R THIS YEAR ALSO BY THE LD. CIT(APPEALS) AND THE MATTER MAY BE RESTORED TO HIS FILE. 3 ITA NO. 1057 /PUN/20 17 A.Y. 2012 - 13 4. PER CONTRA, THE LD. DR VEHEMENTLY OPPOSED TO THE SUBMISSIONS MADE BY THE LD. AR OF THE ASSESSEE STATING THAT SEVERAL OPPORTUNITIES WERE PROVIDED TO THE A SSESSEE WHICH IS EVIDENT FROM RECORD BUT THE ASSESSEE W AS NOT AT ALL VIGILANT REGARDING PURSUING THE CASE BEFORE THE FIRST APPELLATE AUTHORITY AND THEREFORE, THE ASSESSEE DOES NOT DESERVES ANY FURTHER CHANCE. 5. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL C ONTENTIONS. WE HAVE ALSO ANALYZED THE FACTS AND CIRCUMSTANCES IN THIS CASE. WE FIND THAT AN EX - PARTE ORDER HAS BEEN PASSED BY THE LD. CIT(APPEALS) WHEREIN AS PER THE REASONS RECORDED IN HIS ORDER, HE HAS DISMISSED THE APPEAL OF THE ASSESSEE. IT IS THE PRAY ER OF THE LD. AR OF THE ASSESSEE BEFORE US THAT IN THE EARLIER ASSESSMENT YEARS 2010 - 11 AND 2011 - 12, THE DIS ALLOWANCE ON BOGUS PURCHASES WERE RESTRICTED TO 15 % OF SUCH PURCHASES AND THE SAME SHOULD BE FOLLOWED FOR THIS YEAR ALSO SINCE THE FACTS AND CIRCUMS TANCES ARE SIMILAR AND THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(APPEALS). THE CONTENTIONS OF THE LD. DR IS ALSO TRUE THAT IN SPITE OF SEVERAL OPPORTUNITIE S PROVIDED TO THE ASSESSEE, HE H AS NOT PURSU ED HIS CASE BEFORE THE LD. CIT(APPEALS). HOWEVER, WHEN WE LOOK AT THE INCOME TAX ACT, WE FIND THAT PRINCIPLE OF EQUITY IN THE FORM OF WELFARE LEGISLATION IS VERY MUCH IMBIBED IN THE STATUTE AND THEREFORE, WE ARE OF THE CONSIDERED V IEW, IN THE INTEREST OF JUSTICE AND AS PER PRINCIPLE OF CONSISTEN CY, THE ORDER OF THE LD. CIT(APPEALS) SHOULD BE SET ASIDE AND THE MATTER SHOULD BE RESTORE D BACK TO HIS FILE TO CONSIDER THE APPELLATE ORDER S FOR ASSESSMENT YEAR 2010 - 11 AND 2011 - 12 WHEREIN 15% OF THE BOGUS PURCHASES HAS BEEN CONFIRMED AS REGARDS THE TOTAL 4 ITA NO. 1057 /PUN/20 17 A.Y. 2012 - 13 BOGUS PURCHASES AND ADJUDICATE THE ISSUE AS PER LAW AFTER COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. WE ORDER ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 12 TH DAY OF MARCH , 20 20 . SD/ - SD/ - D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 12 TH M ARCH , 2020. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 13, PUNE. 4. THE PR. CIT - 5, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 5 ITA NO. 1057 /PUN/20 17 A.Y. 2012 - 13 DATE 1 DRAFT DICTATED ON 11 .03.2020 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 11 .03.2020 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER