SUPER DIAMOND EXPORTS, MUMBAI V. ASST CIT CIRCLE- 19 (3), MUMBAI

ITA 171/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4976 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR MENONLD
• Keywords: Accommodation entries
• Section: 143(3); 48; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE HONBLE SHRI VIKAS AWASTHY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO. 171 /MUM/20 20 ( / ASSESSMENT YEAR : 2008 - 09 ) SUPER DIAMOND EXPORTS AE - 7050, 7 TH FLOOR BHARAT DIAMOND BOURSE BANDRA KURLA COMPLEX BANDRA (E ) , MUMBAI - 400 051 / VS. ACIT 19(3 ) R. NO. 206 , 2 ND FLOOR MATRU MANDIR GRANT ROAD MUMBAI - 400 027 ./ ./ PAN/GIR NO . A A GFS - 8464 - C ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI VIJAY KUMAR MENON LD. SR. DR / DATE OF HEARING : 28 /09 /2021 / DATE OF PRONOUNCEMENT : 28/09/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR (AY) 2008 - 09 ARISES OUT OF ORDER OF LEARNE D COMMISSIONER OF INCOME - TAX (APPEALS) - 7 , MUMBAI [CIT(A)], DATED 14/11 /2019 IN THE MATTER OF ASSESSMENT FRAMED BY LD. ASSESSING OFFICER (AO) U/S 143(3) R.W.S. 147 ON 18/03/2016. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER : - 1. ON FACTS AND IN LAW, TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) (HEREINAFTER REFERRED TO AS THE 'LD. C IT(A) HAD FAILED TO APPRECIATE THAT TH E NOTICE U/S.148 WAS NOT SERVED TO THE APPELLA NT BEFORE 31.03.2015 PROVIDED U/S 1 48 OF THE 2 INCOME - TAX ACT. UNDER THE FACTS AND C IRCUMS TANCES OF THE MATTER, THE ORDER PASSED U/S. 143(3) R.W.S. 147 IS BAD - IN - LAW. 2. ON FACTS AND IN LAW, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE RE - OPENING OF THE ASSESSMENT OF THE APPE LLANT BY THE ISSUE OF NOTICE U/S 148 OF W ITHOUT SATISFYING THE JUR ISDICTIONAL CONDITIONS PRECEDENT TO ASSUMING JURISDICTION U/S 147 IS WITHOUT JU RISDICTION AND BAD - IN - LAW AND C ONSEQUENTLY, ANY ASSESSMENT MADE ON THE BASIS OF THE NOTICE WHICH IS BAD - IN - LAW AND MAY KIND LY BE ANNULLED 3. ON FACTS AND IN LAW, THE LD. CIT(A ) HAD ERRED IN CONFIRMING THE ADDITION OF RS.5,91,658 BEING 5% OF THE PURCHASE TRANSACTION OF RS.1,18,33, 1 56/ - MADE FROM M/S. LITTLE DIAM AND M/S.SANKHALA EXPORTS PVT. LTD. UNDER THE FACTS AND CIRCUMSTANCES OF THE MATTER, HE OUGHT TO HAVE DELETED THE SAID ADDITION OF RS.5,91,658. 2. AT THE TIME OF HE ARING, NONE APPEARED FOR ASSESSEE. THE PERUSAL OF ORDER SHEET ENTRIES WOULD REVEAL THAT NONE HAS APPEARED FOR ASSESSEE ON VARIOUS OCCASIONS. THE LD. SR. DR POINTED OUT THAT THE ASSESSEE FAILED TO APPEAR DURING A PPELLATE PROCEEDINGS ALSO AND THEREFORE, THE APPEAL IS LIABLE TO BE DISMISSED. 3. THE MATERIAL FACTS ARE THAT PURSUANT TO SEARCH ACTION ON SHRI BHANWARLAL JAIN GROUP ON 03/10/2013, THE ASSESSEES CASE FOR THE YEAR WAS REOPENED AS PER DUE PROCESS OF LAW AN D A NOTICE U/S 148 WAS ISSUED ON 19/03/2015. THE ORIGINAL RETURN FILED BY THE ASSESSEE WAS PROCESSED U/S 143(1). ON THE BASIS OF SEARCH ACTION, IT WAS ALLEGED THAT THE ASSESSEE PROCURED ACCOMMODATION ENTRIES OF PURCHASES AGGREGATING TO RS.118.33 LACS FROM TWO OF THE ENTITIES OF THE SAID GROUP AS DETAILED IN PARA - 3 OF THE ORDER. THOUGH THE ASSESSEE DEFENDED THE PURCHASES, HOWEVER, GOING BY INVESTIGATION FINDINGS, LD. AO ESTIMATED AN ADDITION OF 5% AGAINST THESE PURCHASES. 4. THOUGH THE ASSESSEE CHALLENGED TH E ACTION OF LD. AO ON LEGAL GROUNDS AS WELL AS ON MERITS, BUT IT FAILED TO APPEAR DURING APPELLATE PROCEEDINGS. THE LD. CIT(A), AFTER CONSIDERING THE FACTUAL MATRIX, REJECTED THE APPEAL OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE U S. 3 5. AFTER GOING THROUGH THE ORDERS OF LOWER AUTHORITIES, WE FIND THAT THE ISSUE HAS BEEN CLINCHED IN THE RIGHT PERSPECTIVE. THE PURCHASES MADE FROM TAINTED PARTIES COULD NOT BE FULLY SUBSTANTIATED BY THE ASSESSEE. THE ESTIMATION OF 5%, IN OUR OPINION, IS VERY REASONABLE AND FAIR ON THE FACTS OF THE CASE. NO INFIRMITY COULD ALSO BE NOTED IN THE JURISDICTION ACQUIRED BY LD. AO. THEREFORE, WE ARE INCLINED TO DISMISS THE APPEAL. 6. THE APPEAL STAND DISMISSED. ORDER PRONOUNCED ON OPEN COURT ON 28 TH SEPTEMBER, 2021. SD/ - SD/ - ( VIKAS AWASTHY ) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 28 /09 /2021 SR.PS, DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDE R, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.