MOHAN KUMAR KRISHNAN NAIR, THANE V. ITO WARD 2(2) , KALYAN

ITA 106/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5877 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A H ANSARI
• Assessee Lawyers: MONISH M NAIR
• Keywords: Opportunity of being heard; Corroborative evidences; Set aside
• Section: 142(1); 143(1); 143(2); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NOS. 106 & 107/MUM/2019 ASSESSMENT YEARS : 2010-11 & 2011-12 MOHAN KUMAR KRISHNAN NAIR, F-66 MIDC ADDITIONAL AMBERNATH EAST, THANE. / VS. ITO WARD 2(2) KALYAN. ./ ./ PAN/GIR NO. : ABWPN2464J ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MONISH M. NAIR / RESPONDENT BY : SHRI A.H. ANSARI / DATE OF HEARING 20.01.2020 !'# / DATE OF PRONOUNCEMENT 05 .02.2020 / O R D E R PER SHRI SAKTIJIT DEY, JAM: AFORESAID APPEALS BY THE SAME ASSESSEE ARISE OUT OF TWO SEPARATE ORDERS, BOTH DATED 03.10.2018, PASS ED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3 , THANE, PERTAINING TO ASSESSMENT YEARS 2010-11 & 2011-12. 2. WHEN THE APPEALS WERE CALLED FOR HEARING, NO ONE WAS PRESENT TO REPRESENT THE CASE ON BEHALF OF THE ASSESSEE, DESPITE SERVICE OF HEARING NOTICE WHICH I S ITA NO S.106 & 107 MUM/2019 MOHAN KUMAR KRISHNAN NAIR, MUMBAI. - 2 - EVIDENT FROM THE POSTAL ACKNOWLEDGMENT KEPT ON RECORD. IN VIEW OF THE AFORESAID, WE PROCEED TO DISPOSE OF THE APPEALS EX-PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE. 3. BOTH THE APPEALS HAVE BEEN FILED ON THE COMMON ISSUE OF DISALLOWANCE MADE ON ACCOUNT OF NON-GENUIN E PURCHASES. BRIEFLY THE FACTS, MORE OR LESS COMMON IN BOTH THE APPEALS ARE, THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND JOB WORK OF ENGINEERING GOODS THROUGH HIS PROPRIETA RY CONCERN M/S. MOBA ENGINEERING WORKS. FOR THE ASSESSMENT YEAR UNDER DISPUTE, ASSESSEE FILED HIS RETURN OF INCOME IN REGULAR COURSE AND THE RETURNS SO FILED WERE INITIALLY PROCESSED U/S 143(1) OF THE AC T. SUBSEQUENTLY, THE ASSESSING OFFICER RECEIVED INFORMATION FROM THE SALE TAX DEPARTMENT INDICATING THAT PURCHASES WORTH RS. 7,29,366/- IN ASSESSMENT YEAR 2010-11 AND PURCHASE WORTH RS. 6,04,941/- CLAIMED TO HAVE BEEN MADE IN ASSESSMENT YEAR 2011- 12 ARE NON-GENUINE. ON THE BASIS OF SUCH INFORMATION, THE ASSESSING OFFICER REOPENED THE ASSESSMENTS UNDER SECTION 147 OF THE ACT. IN RESPONSE TO THE STATUTORY NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT AND SECTION 143(2) OF THE ACT, AS ALLEGED BY THE ASSESSING OFFICER, THE ASSES SEE NEITHER APPEARED NOR FILED ANY EVIDENCE IN COMPLIANCE. THUS, THE ASSESSING OFFICER ULTIMATELY ITA NO S.106 & 107 MUM/2019 MOHAN KUMAR KRISHNAN NAIR, MUMBAI. - 3 - PROCEEDED TO COMPLETE THE ASSESSMENTS U/S 144 OF TH E ACT TO THE BEST OF HIS JUDGMENT BY TREATING THE ENT IRE PURCHASES UNDER DISPUTE AS NON-GENUINE AND ADDED BACK TO THE INCOME OF THE ASSESSEE. CONTESTING THE AFORESAID ADDITIONS, THE ASSESSEE PREFERRED APPEALS BEFORE LEARNED COMMISSIONER (APPEALS). HOWEVER, DU E TO NON-APPEARANCE OF THE ASSESSEE ON THE DATE OF HEARING, LEARNED COMMISSIONER (APPEALS) DISPOSED OF THE APPEALS EX-PARTE BY SUSTAINING THE ADDITIONS MA DE BY THE ASSESSING OFFICER. 4. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED MATERIAL ON RECORD. FRO M THE CONDUCT OF THE ASSESSEE IT APPEARS THAT, HE IS NOT TOO SERIOUS IN THE MATTER OF TAX LITIGATIONS CONCER NING HIM. THIS IS EVIDENT FROM THE REPEATED NON- APPEARANCE BY THE ASSESSEE NOT ONLY BEFORE THE REVENUE AUTHORITIES BUT EVEN BEFORE US. HOWEVER, CONSIDERING THE FACT THAT DUE TO NON-APPEARANCE OF THE ASSESSEE IN COURSE OF ASSESSMENT PROCEEDING AS WELL AS BEFORE LEARNED COMMISSIONER (APPEALS), CERTAIN PURCHASES CLAIMED TO HAVE BEEN MADE DURING THE YEARS UNDER CONSIDERATION WERE TREATED AS NON- GENUINE AND ADDITIONS WERE ACCORDINGLY MADE, WE ARE INCLINED TO GRANT A FINAL OPPORTUNITY TO THE ASSESS EE TO PROVE THE GENUINENESS OF THE DISPUTED PURCHASES BY FURNISHING SUPPORTING EVIDENCES. TO FACILITATE THI S, WE SET ASIDE THE IMPUGNED ORDERS OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK T O ITA NO S.106 & 107 MUM/2019 MOHAN KUMAR KRISHNAN NAIR, MUMBAI. - 4 - HIS FILE FOR FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO MAKE EFFECTIVE REPRESENTATION BEFORE LEARNED COMMISSIONE R (APPEALS) TO CONTEST THE ADDITIONS MADE BY THE ASSESSING OFFICER. WE MAKE IT CLEAR, IN THE EVENT OF ANY FURTHER FAILURE ON THE PART OF THE ASSESSEE TO REPRESENT HIS CASE, LEARNED COMMISSIONER (APPEALS) WILL BE AT LIBERTY TO DECIDE THE APPEALS ON THE BAS IS OF MATERIAL AVAILABLE ON RECORD AND IN ACCORDANCE WITH LAW. WITH THE FORESAID OBSERVATIONS, THE GROUNDS A RE ALLOWED FOR STATISTICAL. 5. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED FO R STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 02.02 .2020 SD/ SD/ (G. MANJUNATHA) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 05.02.2020 KRK, PS ITA NO S.106 & 107 MUM/2019 MOHAN KUMAR KRISHNAN NAIR, MUMBAI. - 5 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / THE CIT(A) 4. ) ( ) / CONCERNED CIT 5. ,-. //'( , '(# , & / DR, ITAT, MUMBAI 6. .34 5 / GUARD FILE. / BY ORDER, , / //TRUE COPY// / ( ASST. REGISTRAR) !' #, / ITAT, MUMBAI