DHIRAJ NAROTTAM SHAH, MUMBAI V. ITO 30 (1)(3), MUMBAI

ITA 183/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9894 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 09-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH
• Keywords: Bogus purchase; Revision of order; Opportunity of being heard; Principle of natural justice
• Section: 69C; 143(3); 263; 144

Judgement Text

ITA NO 183/MUM/2017 DHIRAJ NAROTTAM SHAH ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 183/MUM/2017 ( / ASSESSMENT YEAR: 2009-10) DHIRAJ NAROTTAM SHAH 84,2 ND FLOOR VIJAYKARWADI, S.V.ROAD, MALAD(W) MUMBAI 400 064 / VS. INCOME TAX OFFICER 30(1)(3) PRATYAKSHKAR BHAVAN, BKC, BANDRA(E) MUMBAI -400 051 ./ ./PAN/GIR NO. ANIPS-0170-J ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SAURABH DESHPANDE, LD. DR / DATE OF HEARING : 21/08/2017 / DATE OF PRONOUNCEMENT : 06 /09/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 ASSAILS THE EX-PARTE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-41 [CIT(A)], MUMBAI DATED 19/10/2016 QUA CONFIRMATION OF ITA NO 183/MUM/2017 DHIRAJ NAROTTAM SHAH ASSESSMENT YEAR 2009-10 2 CERTAIN ADDITIONS U/S 69C ON ACCOUNT OF BOGUS PURCHASES. NONE HAS APPEARED ON BEHALF OF ASSESSEE AND NO ADJOURNMENT A PPLICATION IS ON RECORD. LEFT WITH NO OPTION, WE PROCEED TO DISPOSE- OFF THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEA RING LD. DEPARTMENTAL REPRESENTATIVE. 2. BRIEFLY STATED, THE ASSESSEE BEING RESIDENT INDIVIDUAL ENGAGED IN THE BUSINESS OF CHEMICALS WAS SUBJECTED TO REVISIONAL JURISDICTION U/S 263 FOR IMPUGNED AY AND CONSEQUENTLY, ASSESSED U/S 144 READ WITH SECTION 263 ON 20/03/2015 WHERE THE INCOME OF THE ASSESSEE WAS DETERMINED AT RS.52,74,299/- AFTER ADDITION OF RS.4 7,96,883/- U/S 69C ON ACCOUNT OF BOGUS PURCHASES. THE ORIGINAL RETURN OF INCOME WAS FILED AT RS.4,55,386/- ON 22/09/2009 WHICH WAS ASSESSED U/S 143(3) ON 26/12/2011 AT RS.4,77,420/-. 3. DURING CONSEQUENTIAL PROCEEDINGS, PURSUANT TO RE CEIPT OF CERTAIN INFORMATION FROM SALES TAX DEPARTMENT ABOUT DEALERS INDULGING IN BOGUS PURCHASE BILLING, IT WAS NOTICED THAT THE ASSESSEE MADE BOGUS PURCHASES OF RS.47,96,883/- FROM AN ENTITY NAMELY YASH ENTERPRISES. SINCE THE ASSESSEE COULD NOT FILE REQUISITE INFORMA TION TO SUBSTANTIATE THE PURCHASES, THE SAME RESULTED INTO BEST JUDGMENT ASSESSMENT U/S 144 WHERE THE PURCHASES WERE TREATED AS NON-GENUINE AND ADDED TO THE INCOME OF THE ASSESSEE. 4. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH PARTIAL SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 19/10/2 016 WHICH IS AN EX- PARTE ORDER SINCE THE ASSESSEE SOUGHT SEVERAL ADJOURNMENT S AND DID NOT MAKE ANY SUBMISSIONS, WHICH LED THE LD. CIT(A) TO C ONFIRM THE ADDITION ITA NO 183/MUM/2017 DHIRAJ NAROTTAM SHAH ASSESSMENT YEAR 2009-10 3 TO THE EXTENT OF 30% OF BOGUS PURCHASES. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US TO CONTEST THE IMPUGNED AD DITIONS. 5. THE LD. DR DREW OUR ATTENTION TO THE FACT THAT T HE ASSESSEE FAILED TO MAKE / PRODUCE ANY SUBMISSIONS / DOCUMENTARY EVI DENCES TO SUBSTANTIATE THE PURCHASES AND THEREFORE, RIGHTLY B EEN SADDLED WITH IMPUGNED ADDITIONS. FURTHER, ADEQUATE RELIEF HAS AL READY BEEN GIVEN BY LD. CIT(A) AND THEREFORE, THERE IS NO SUBSTANCE IN ASSESSEES APPEAL. 6. HEARD AND PERUSED THE MATERIAL AVAILABLE ON RECO RD. WE CONCUR WITH THE STAND OF LD. DR THAT THE ASSESSEE MISERABL Y FAILED TO SUBSTANTIATE THE PURCHASES BEFORE LOWER AUTHORITIES AND COULD NOT PRODUCE ANY EVIDENCE. THE ONUS TO SUBSTANTIATE THE SAME SQUARELY LIED ON THE ASSESSEE AND HE HAS FAILED TO DISCHARGE THE SAME. HOWEVER, IT IS NOTED THAT THE ORDER OF FIRST APPELLATE AUTHORITY I S AN EX-PARTE ORDER. IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WE SEE NO HARM IN PROVIDING AN OTHER OPPORTUNITY TO THE ASSESSEE TO CONTEST HIS CLAIM BEFORE LD. CIT(A) . THEREFORE, WITHOUT DELVING MUCH DEEPER ON MERITS, WE RESTORE THE MATTE R BACK TO THE FILE OF LD. CIT(A) FOR DE-NOVO ADJUDICATION AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FAILING WHICH LD. CI T(A) SHALL BE AT LIBERTY TO DECIDE THE MATTER ON THE BASIS OF MATERIAL AVAIL ABLE ON RECORD. 7. RESULTANTLY, THE APPEALS FILED BY THE ASSESSEE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NO 183/MUM/2017 DHIRAJ NAROTTAM SHAH ASSESSMENT YEAR 2009-10 4 ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH SEPTEMBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06. 09.2017 SR.PS:- THIRUMALESH ! / 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 ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI