ALEX INTERNATIONAL, MUMBAI V. ASST CIT CC 31, MUMBAI

ITA 206/MUM/2014

• Counselvise Citation: 20619914 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 08-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY PUNGLIA
• Keywords: Opportunity of being heard

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , . . , , . . , BEFORE SHRI I.P. BANSAL , J M AND SHRI B.R. BASKARAN , A M . / ITA NO. 206 / MUM/ 201 4 ( / ASSESSMENT YEAR : 200 8 - 0 9 ) M/S. ALEX INTERNATIONAL, PLOT NO.74/A GOVERNMENT INDUSTRIAL ESTATE, CHARKOP, KANDIVALI (W) MUMBAI 400 0 67 .. / APPELLANT V/S ACIT CC - 31 , MUMBAI .. .. / RESPONDENT . / PERMANENT ACCOUNT NUMBER AA DFA1523F APPELLANT BY : NONE REVENUE BY : SHRI SANJAY PUNGLIA (DR) / DATE OF HEARING 15 .0 6 .201 5 / DATE OF ORDER 15 .0 6 .2015 / ORDER . . , / PER B.R. BASKARAN , A .M. THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 22 - 1 0 - 201 3 PASSED BY LD CIT(A) - 40 , MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2008 - 09. THE ASSESSEE IS AGGR IEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE DISALLOWANCE OF PURCHASE OF RS.6,09,440/ - . ALEX INTERNATIONAL 2 2. NONE AP PEARED ON BEHALF OF THE ASSES S EE, E VEN THOU GH THE DATE OF HEARING WAS INFORMED TO THE ASSESSEE AT THE TIME OF FILING OF THE APPEAL ITSELF . HENCE, W E PROCEED TO DISPOSE OF THE APPEAL E X - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 3. WE HEARD THE LD. DR AND PERUSED THE RECORD. THE ASSESSING OFFICER NOTICE D THAT THE ASSESSEE HAS PURCHASED MATERIALS FROM RAJ ENTERPRISE S FOR RS.6,09,440/ - . I N ORDE R TO VERIFY THE GENUINENESS OF THE PURCHASE S , NOTICES U/S.133(6) OF THE ACT WERE ISSUED TO M/S. RAJ ENTERPRISES. HOWEVER, THE SAID PARTY REPLIED THAT IT DID NOT HAVE ANY TRANSACTION WITH THE ASSESSEE. ACCORDINGLY, THE ASSESS ING OFFICER TREATED THE PURCHASE S , REFERRED ABOVE, AS BOGUS/UNEXPLAINED AND ACCORDINGLY ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE LD. CIT(A) ALSO CONFIRMED THE SAME AND HENCE THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 4. IN THE GROUNDS OF A PPEAL , THE ASSESSEE HAS S UBMITTE D THAT IT HAS FILED PURC HASES BILLS, BANK CERTIFICATE EVIDENCING THE PAYMENT MADE TOWARDS PU RC HASES AND ALSO CONFIRMATION LETTER OBTAINED FROM THE PARTY. IT IS FURTHER SUBMITTED THAT THE PAYMENT HAS BEEN MADE BY WAY OF ACCOUNT PAYEE CHEQUE. ACCORDI NGLY, IT H AS BEEN SUBMITT ED THAT THE SE EVIDENCES HAVE NOT BEEN PROPERLY CONSIDERED AND THE ASSESSEE WAS NOT PROVIDE D WITH ENOUGH OPPORTUNITY TO EXPLAIN THESE EVIDENCES. 5 . FROM THE ORDER OF LD. CIT(A), WE NOTICE THAT THE FIRST APPELLATE AUTHORITY HAS CALL ED FOR REMAND FROM THE ASSESSING OFFICER IN RESPECT OF THE EVIDENCES FURNISHED BY THE ASSESSEE . HOWEVER THE A O HAS REPORTED THAT THERE WAS NO RESPONSE FROM M/S RAJ ENTERPRI S ES TO THE ALEX INTERNATIONAL 3 NOTICE ISSUED BY HIM U/S.133(6) OF THE A CT. FURTHER THE AO HAS ALSO STAT ED THAT THE ASSESSEE H AS EXPRESSED I T S INABILITY TO PROD UC E M/S. RAJ ENTERPRI S E S BEFORE THE AO. ACCORDINGLY, THE AO HAS EXPRESSED THE VIEW THAT IT WOULD BE DIFFICULT FOR THE ASSESSEE TO PROVE THE GENUINENESS OF THE EXPENSES. ACCORDINGLY, WE NOTICE THAT TH E LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ASSESSEE OFFICER. 6. IT IS NOT DISPUTED BY THE R EVENUE THAT THE ASSESSEE HAS FURNISHED VARIOUS DOCUMENTS IN SUPPORT OF THE PURCHASES. FURTHER THE NOTICE ISSUED BY THE ASSESSING OFFICER TO M/S. RAJ E NTERPRISES IN THE REMAND PROCEEDINGS HAS NOT BEEN RESPONDED BY IT . THUS, IT SHOWS THAT M/S. RAJ ENTERPRISE HAS NOT PROPERLY CO - OPERATED WITH THE ASSESSING OFFICER. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE TAX AUTHORITIES ARE NOT JUSTIFIED IN NOT CONSIDERING VA RIOUS EVID ENCES FURNISHED BY THE ASSESSEE, I N VIEW OF NON - COOPERATION OF M/S. RAJ ENTERPRISES . IN OUR VIEW, IT MAY NOT BE PROPER TO TAKE ADVERSE VIEW ON ACCOUNT OF NON - COOPERATION OF THE SUPPLIER. IF THE SUPPLIER IS NOT CO - OPERATING TO THE NOTICE ISSUED BY THE AO, IT CANNOT BE EXPECTED THAT THE ASSESSEE WOULD BE IN A POSITION TO PRODUCE THE SUPPLIER. ACCORDINGLY, WE ARE OF THE VIEW THAT THE AO SHOULD HAVE RESORTED TO OTHER MEANS PROVIDED UNDER THE LAW TO CROSS VERIFY THE EVIDENCES FUR NISHED BY THE ASSESSEE OR SHOULD HAVE EXAMINED THEM IN ORDER TO TAKE A JUDICIOUS VIEW OF THE MATTER. S INCE THE EVIDENCES FURNISHED BY THE ASSESSEE HAVE NOT BEEN PROPERLY EXAMINED, WE ARE OF THE VIEW THAT THIS I SSUE RE QUIRES FRESH EXAMINATION AT THE END O F THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE LD. CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFIC ER WITH A DIRECTION TO EXAMINE THE ISSUE AFRESH AFTER AFF ORDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ALEX INTERNATIONAL 4 7 . IN TH E RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT O N 15TH DAY OF JUNE, 2015. SD SD SD SD/ - . . I.P.BANSAL JUDICIAL MEMBER SD/ - . . B.R. BASKARAN ACCOUNTANT MEMBER MUMBAI, DATED : 15 . 06 .2015 PATEL / COPY OF THE ORDER FORWARDED TO : ( 1 ) / THE ASSESSEE ; ( 2 ) / THE REVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER TRUE COPY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI