ITO, New Delhi V. Mr. Anil Kumar, New Delhi

ITA 1893/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6974 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-01-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 01-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.1893/DEL./2014 (ASSESSMENT YEAR : 2005-06) ITO, WARD 25 (1), VS. MR. ANIL KUMAR, NEW DELHI. PROP.: M/S. BHUSHAN & CO., 14 B, G&JU BLOCK, PITAMPURA, DELHI 110 034. (PAN : AATPK0018P) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI NEERAJ JAIN & P.K. MISHRA, CA S REVENUE BY : SHRI S.K. JAIN, SENIOR DR DATE OF HEARING : 09.01.2017 DATE OF ORDER : 16.01.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, INCOME-TAX OFFICER, WARD 25 (1), NE W DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILIN G THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 28.01.2014, PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- XXIV, NEW DELHI UNDER SECTION 143(3)/147 OF THE INCOME-TAX AC T, 1961 (FOR SHORT THE ACT) QUA THE ASSESSMENT YEAR 2005-06 ON THE GROUNDS INTER ALIA THAT :- ITA NO.1893/DEL./2014 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW CIT (A) HAS ERRED IN 1. RESTRICTING THE ADDITION OF RS.1,26,60,000/- TO RS.7,75,816/- MADE BY AO ON ACCOUNT OF NON- GENUINE PURCHASE. 2. THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL. 2. BRIEFLY STATED FACTS OF THIS CASE ARE : THE ASSE SSEE IS INTO MANUFACTURING AND TRADING OF STAINLESS STEEL UTENSI LS, CIRCLE, PATTA, SCRAP ETC. AND HAS FILED RETURN BY DECLARING TOTAL INCOME OF RS.2,14,140/- FOR ASSESSMENT YEAR 2005-06. SUBSEQU ENTLY, BY ISSUING A NOTICE U/S 148 OF THE ACT ON 28.03.2012, THE AO REOPENED THE CASE. AO MADE AN ADDITION OF RS.1,26,60,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE ON THE GROUND THAT THE ASSES SEE HAS FAILED TO PRODUCE DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAI M OF PURCHASE OF S.S. UTENSILS ALLEGED TO HAVE BEEN PURCHASED FRO M VEE KAY INTERNATIONAL AND NAVNEET KUMAR JAIN & SONS AND COM PLETED THE ASSESSMENT U/S 147/143(3) OF THE ACT AT RS.1,28,74, 140/-. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS PARTLY ALLOWED THE ASSESS EES APPEAL BY RESTRICTING THE ADDITION ON ACCOUNT OF NON-GENUINE PURCHASES OF ITA NO.1893/DEL./2014 3 RS.7,75,816/- AS AGAINST RS.1,26,60,000/- MADE BY T HE AO. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBU NAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, IT IS BROUGHT TO OUR NOTICE BY LD. DR FOR THE REVENUE THAT THE LD. CIT (A) HAS ENTERTAINED NU MEROUS DOCUMENTS FILED BY THE ASSESSEE DURING APPELLATE PR OCEEDINGS, MENTIONED IN PARA 5.3 OF THE IMPUGNED ORDER, WITHOU T PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE AO AND PROCEEDED TO RESTRICT THE ADDITION ON THE BASIS OF GUESSWORK AND SURMISES. 6. UNDISPUTEDLY, THE CIT (A) HAVE ENTERTAINED COPIE S OF SALES- TAX ASSESSMENT ORDER FOR THE PERIOD RELEVANT TO AY 2005-06, COPIES OF PURCHASE BILLS AND COPIES OF SALES BILLS ALONG W ITH SUPPORTING DOCUMENTS EVIDENCING THE MOVEMENT OF GOODS AND HAS ALSO ENTERTAINED COPIES OF BILLS, GIR BY THE TRANSPORTER S AND OTHER STATUTORY FORMS TO PROVE THE MOVEMENT OF GOODS INTE R-STATE AND OVERSEAS, BUT HAS NOT PREFERRED TO GET ALL THESE DO CUMENTS VERIFIED ITA NO.1893/DEL./2014 4 OR BY CALLING UPON A REMAND REPORT FROM THE AO. NO T ONLY THIS, IN PARA 5.3 AT PAGE 10 OF THE IMPUGNED ORDER, LD. CIT (A) HAS HIMSELF RECORDED THAT, THE APPELLANT HAS MADE TOTAL PURCHASE OF RS.6,43,35,241/- OUT OF WHICH PURCHASES TO THE TUNE OF RS.4,30,75,433/- ARE FROM ALLEGED ENTRY OPERATORS O UT OF WHICH RS.1,26,60,000/- HAVE BEEN TREATED TO BE NON-GENUIN E, THEN REMAINING PURCHASES OF RS.3,04,15,433/- WERE ALSO N OT FREE FROM DOUBT AND THE SAME SHOULD HAVE BEEN HELD TO BE NON- GENUINE WHICH HE HAS NOT DONE SO. HENCE, THE ACTION OF AO IS CONTRADICTORY ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 7. WHEN LD. CIT (A) HIMSELF WAS NOT SATISFIED WITH THE FINDINGS OF THE AO QUA THE ENTIRE PURCHASES OF RS.4,30,75,43 3/- (OUT OF WHICH AO TREATED THE PURCHASES TO THE TUNE OF RS.1, 26,60,000/- AS NON-GENUINE) THEN HOW HE HAS PROCEEDED TO RESTRICT THE ADDITION TO RS.7,75,816/-. LD. CIT (A) WAS REQUIRED TO GET THE ENTIRE PURCHASES MADE BY THE ASSESSEE TO THE TUNE OF RS.4, 30,75,433/- VERIFIED BY PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE AO AND NOT TO PROCEED ON THE BASIS OF GUESSWORK IN ORDER T O RESTRICT THE ADDITION TO RS.7,75,816/- AS AGAINST RS.1,26,60,000 /- MADE BY THE AO. IN THESE CIRCUMSTANCES, THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW AND THE MATTER IS REQUIRED TO BE RESTORED TO LD. ITA NO.1893/DEL./2014 5 CIT (A) TO DECIDE AFRESH AFTER PROVIDING AN OPPORTU NITY OF BEING HEARD TO THE PARTIES. 7. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, PRESEN T APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PUR POSES AND THE FILE IS RESTORED TO THE FILE OF LD. CIT (A) IN THE LIGHT OF THE OBSERVATIONS MADE HEREIN BEFORE. ORDER PRONOUNCED IN OPEN COURT ON THIS16TH DAY OF J ANUARY, 2017. SD/- SD/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 16 TH DAY OF JANUARY, 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXIV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.