HIMANSHU DILIP JAIN, MUMBAI V. INCOME TAX OFFICER - 19(1)(5), MUMBAI

ITA 129/MUM/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5380 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 08-05-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANANT KANSE
• Keywords: Principle of natural justice; Tangible material; Non compliance; Bogus
• Section: 147; 143(3); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI B R BASKARAN, AM AND MS. KAVITHA RAJAGOPAL, JM IT A N o. 129 /M u m / 20 24 ( A ss e s s me n t Y e a r: 2009 -1 0 ) Himanshu Dilip Jain 173, Kika Street, Gulal Wadi, Mumbai-400 004 V s. Income Tax Officer-19(1)(5) Room No. 228, Matru Mandir, Tardeo, Grant Road, Mumbai-400 007 P A N / G I R N o. AG H P J 164 1 F (Assessee) : (Respondent) Assessee by : Shri Anant Kanse Respondent by : Shri P D Chougule D a te o f H e a r i n g : 09.05.2024 D ate of P ro n o u n c e me n t : 31.07.2024 O R D E R Per Kavitha Rajagopal, J M: This appeal has been filed by the assessee, challenging the ex parte order of the learned Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'), pertaining to the Assessment Year (‘A.Y.’ for short) 2009-10. 2. The grounds of appeal raised by the assessee reads as under: 1. That on the facts and circumstances of the case and in law, the reopening proceedings initiated by the ld. AO u/s. 147 is bad in law and liable to be quashed. a. The ld.AO erred in reopening the assessment u/s. 147 solely on the basis of information received from DGIT (Inv.), Mumbai without any application of mind and as such, the reopening is bad in law and liable to be quashed. b. The ld. AO erred in reopening the assessment u/s. 147 based on suspicion and surmises without any tangible material showing escapement if income and as such, the reopening is bad in law and liable to be quashed. 2. That on the facts and circumstances of the case and in law, the ld. CIT(A) erred in confirming the action of A.O. in disallowing a sum of Rs.81,47,266/-, on account of alleged bogus purchases. 2 ITA No. 1 2 9 / M u m / 2 0 2 4 ( A . Y . 2 0 0 9 - 1 0 ) Himanshu Dilip Jain vs. ITO 3. The brief facts are that the assessee is engaged in the business of trading in all kinds of reseller in ferrous and non ferrous metal and had filed his return of income for the year under consideration on 30.09.2009 declaring total income at Rs.19,86,962/- which was processed u/s.143(1) of the Act. 4. The ld. Assessing Officer ('A.O.' for short) passed the assessment order u/s. 143(3) r.w.s. 147 of the Act vide order dated 14.03.2015, thereby determining the total income at Rs.1,01,34,228/-. 5. The assessee was in appeal before the first appellate authority, challenging the assessment order. 6. The ld. CIT(A) vide order dated 14.03.2015, upheld the order of the ld.A.O. for the reason that inspite of several opportunity the assessee has failed to substantiate his claim and has been non compliant throughout the appellate proceedings. 7. The assessee is in appeal before us, challenging the impugned order of the ld. CIT(A). 8. We have heard the rival submissions and perused the materials available on record. It is observed that the assessee has challenged the additions made by the ld. A.O. before the first appellate authority but has been non compliant by not responding to the notices nor filed any written submission. 8. The learned Authorised Representative ('ld. AR' for short) for the assessee contended that the assessee has got a good case on the merits and prayed that the assessee may be given one more opportunity to present his case before the ld. CIT(A). 3 ITA No. 1 2 9 / M u m / 2 0 2 4 ( A . Y . 2 0 0 9 - 1 0 ) Himanshu Dilip Jain vs. ITO 9. The learned Departmental Representative ('ld.DR' for short) vehemently opposed to setting aside the issue to the file of the ld. CIT(A) for the reason that the assessee was given several opportunity by the ld. CIT(A) which was not availed by the assessee. 10. On the above factual matrix of the case, we are of the considered view that the assessee may be given one more opportunity to present his case before the first appellate authority by adhering to the principles of natural justice. We, therefore, remand all these issues back to the file of the ld. CIT(A) for de novo adjudication. The assessee is directed to comply with the proceedings without any undue delay on his side. 11. In the result, the appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 31.07.2024 Sd/- Sd/- (B R Baskaran) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 31.07.2024 Roshani , Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT - concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai