M/s. Gorur Infra Projects Pvt. Ltd., Pune V. Joint Commissioner of Income-tax, Pune

ITA 13/PUN/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5935 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 04-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice
• Section: 80IA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM . / ITA NO.13/PUN/2016 / ASSESSMENT YEAR : 2010-11 M/S. GORUR INFRA PROJECTS PVT. LTD., C/O. D.Y. PANDIT, ADVOCATE, 1187/10, KRUPA, SHIVAJI NAGAR, PUNE-411005. PAN : AADCG5519J ....... / APPELLANT / V/S. JT. CIT, PANVEL RANGE, PANVEL. / RESPONDENT ASSESSEE BY : SHRI DEEPA KHARE REVENUE BY : SHRI S. P. WALIMBE / DATE OF HEARING : 22.01.2020 / DATE OF PRONOUNCEMENT : 28.01.2020 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)-2, THANE DATED 28.10.2015 FOR THE ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE APPELLATE ORDER PASSED BY LD. CIT (A) 2, THANE IS CONTRARY TO FACTS OF THE CASE AND AGAINST THE PROVISIONS OF LAW AND PASSED WITH PRECONCEIVE NOTION AND BEST OF CONJECTURES AND SURMISES AND THEREFORE REQUIRES TO BE QUASHED. 2.A). THE JT. COMMISSIONER OF INCOME TAX PANVEL RENGE DISALLOWED THE PAYMENT AMOUNTING TO RS. 2,29,96,335/- MADE TO FOUR SUPPLIERS OF PIPES ON THE GROUND THAT ASSESSEE COULD NOT SUBSTANTIATE ITS CLAIM BY FURNISHING STOCK REGISTER AND MATERIAL INWARD DETAILS AND RELIED UPON THE INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT. INFACT THE JOINT COMMISSIONER OF INCOME TAX PANVEL RANG DID NOT ASK FOR PROVIDING SUCH DETAILS OF STOCK REGISTERS OR MATERIAL INWARD DETAILS DURING ASSESSMENT PROCEEDINGS. 2 ITA NO.13/PUN/2016 B). WHEN ALL SUCH DOCUMENTS WERE PRODUCED, THE LD. CIT (A) 2 HE DID NOT TAKE COGNIZANCE OF THE SAME AND CONFIRM AT THE ADDITION. THUS, IN THESE FACTS AND CIRCUMSTANCES THE LD. CIT(A) 2 ERRED IN CONFIRMING THE ADDITION OF RS. 2,29,96,335/-. 3. THE APPELLANT MAY BE PERMITTED TO AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL OR ADD A NEW GROUND OF APPEAL ANY TIME BEFORE THE HEARING OF APPEAL OR DURING THE COURSE OF APPEAL HEARING. 3. THE ASSESSEE ALSO RAISED THE FOLLOWING ADDITIONAL GROUND :- ASSUMING FOR THE SAKE OF ARGUMENT BUT WITHOUT ADMITTING THE ALLEGED BOGUS PURCHASES WOULD BE ADDED BACK TO THE INFRASTRUCTURAL PROFIT OF THE ASSESSEE WHICH IS EXEMPT U/S. 80IA(4)(B) READ WITH CLAUSE (C) OF THE EXPLANATION TO SEC. 80IA OF THE ACT, AS HELD BY THE BOMBAY HIGH COURT IN THE CASE CIT V/S GEMS PLUS JEWELLERY LTD., 233 CTR 248. 4. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ABOVE EXTRACTED ADDITIONAL GROUND AND SUBMITTED THAT THIS IS A LEGAL ISSUE RAISED BY THE ASSESSEE AND THE SAME SHOULD BE ADMITTED AND ADJUDICATED IN PREFERENCE TO THE ORIGINAL GROUNDS RAISED BY THE ASSESSEE IN THE PRESENT APPEAL. MENTIONING THAT THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF BOGUS PURCHASES AMOUNTING TO RS.2,29,96,335/- FOR THE ASSESSMENT YEAR 2010-11, LD. COUNSEL MENTIONED THAT THE ASSESSEE IS ENTITLED TO CLAIM OF DEDUCTION U/S 80IA(4)(B) OF THE ACT. 5. CONSIDERING THE ABOVE PRAYER OF THE ASSESSEE AND LEGAL NATURE OF THE GROUND, WE FIND RELEVANT TO ADMIT THE SAID ADDITIONAL GROUND. FURTHER, WE FIND THE CLAIM OF DEDUCTION WAS NOT MADE BY THE ASSESSEE AND ASSESSING OFFICER HAD NO OCCASION TO TAKE A VIEW IN THE MATTER. AS SUCH, THIS ISSUE WAS NOT RAISED BEFORE THE LOWER AUTHORITIES. IT IS IN THE FITNESS OF THE PROCEEDINGS BEFORE US, AN OPPORTUNITY SHOULD BE FAIRLY GRANTED TO THE REVENUE FOR EXAMINING THE SAID LEGAL ISSUE RAISING BEFORE US BY WAY OF ADDITIONAL GROUND AND PASSED A SPEAKING ORDER AND/OR REJECTING THE SAID ADDITIONAL GROUND GIVING THE REASONS IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY THE ACT. 3 ITA NO.13/PUN/2016 6. AFTER ADMITTING THE SAID ADDITIONAL GROUND, KEEP ALL THE ISSUES ALIVE RAISED BY THE ASSESSEE IN THE ORIGINAL GROUNDS, WE ARE OF THE OPINION THAT THE ADDITIONAL GROUND AND OTHER ORIGINAL GROUNDS SHOULD BE REFERRED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AS DESIRED BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE US. FURTHER, THE LD. COUNSEL FOR THE ASSESSEE FILED THE VARIOUS DECISIONS IN SUPPORT OF THE CLAIM OF THE ASSESSEE. THEREFORE, THERE IS NEED FOR THE ASSESSING AUTHORITY TO EXAMINE THE APPLICABILITY OF THE SAID DECISIONS AT THE TIME OF ADJUDICATING THE ISSUE. ACCORDINGLY, THE ADDITIONAL GROUND AND THE OTHER ORIGINAL GROUNDS ARE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFTER GRANTING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER SET PRINCIPLES OF NATURAL JUSTICE. THUS, THE ADDITIONAL GROUND AS WELL AS ORIGINAL GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 28 TH DAY OF JANUARY, 2020. SD/- SD/- (S. S. VISWANETHRA RAVI) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 28 TH JANUARY, 2020. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-2, THANE. 4. THE PR. CIT-2, THANE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.