AMIT P. MISTRY, MUMBAI V. ITO 25(2)(1), MUMBAI

ITA 2080/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0183 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 24-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTAM KASHYAP
• Assessee Lawyers: MAMTA PARMAR
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 2080/MUM/2017 ASSESSMENT YEAR: 2009 - 10 AMIT P. MISTRY 402, A. MAKWANA BUILDING, KAMKUWADI P.M. ROAD, VILE PARLE (E), MUMBAI - 400004 VS. ITO - 25(2)(1), MUMBAI. PAN NO. AFYPM3921M APPELLANT RESPONDENT ASSESSEE BY : MS. MAMTA PARMAR , AR REVENUE BY: MR. PURUSHOTTAM KASHYAP , DR DATE OF HEARING : 07/06 /2017 DATE OF PRONOUNCEMENT : 04/09/2017 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2009 - 10. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 37 , MUMBAI AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT 1961, ( T HE ACT). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER: - 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING AD DITION OF RS.64,28,706/ - ON ACCOUNT OF PURCHASE. 2080/MUM/2017 2 2. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN PASSING THE ORDER WITHOUT GIVING FAIR AND REASONABLE OPPORTUNITY TO THE APPELLANT FOR EXPLAINING THE CASE. 3. THE LEARNED CIT(A) ERRED IN LAW AND/OR FACTS IN NOT CONSIDERING THE SUBMISSIONS AND EXPLANATIONS FILED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDING BEFORE PASSING THE ASSESSMENT ORDER. 4. THE LEARNED CIT(A) ERRED IN NOT VERIFYING INFORMATION RECEIVED FROM DGIT (INV.), MUMBAI AND THE FACTS THEREON. 5. THE LEAR NED CIT(A) ERRED IN RELYING ON DECISIONS WHICH ARE FAR AWAY FROM THE PRESENT FACT OF THE CASE. 6. THE LEARNED CIT(A) ERRED IN NOT FOLLOWING LATEST DECISIONS OF VARIOUS COURTS IN THE INTEREST OF NATURAL JUSTICE. 7. THE LEARNED CIT(A) ERRED IN NOT FOLLOWING ARTICLE 227 OF THE CONSTITUTION O F INDIA 1949 , WHICH STATES THE HIGH COURTS HAVE SUPERINTENDENCE OVER ALL COURTS AND TRIBUNALS THROUGHOUT ITS TERRITORIES WHICH MEANS THE DECISION OF HIGH COURT IS BINDING ON ALL LOWER AUTHORITY WITHIN ITS TERRITORIES WHICH, INTER ALIA, INCLUDES INCOME TAX OFFICERS ETC. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE AY 2009 - 10 ON 22.04.2014 DECLARING TOTAL INCOME OF RS. 45,90,030/ - . THE RETURN OF INCOME WAS PROCESSED U/S 143(1). THE ASSESSING OFFICER (AO) RECEIVED INFORMATION FROM THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA , THAT THE ASSESSEE WAS A BENEFICIARY OF BOGUS PURCHASES AMOUNTING TO RS.64,28,706/ - OBTAINE D FROM HAWALA DEALERS. THE AO REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148. THE AO AFTER VERIFICATION CAME TO A CONCLUSION THAT THE ASSESSEE HAD NOT PURCHASED GOODS FROM THE CONCERNED PARTIES AND ONLY ACCOMMODATION BILLS WERE TAKEN IN ORDER TO INFLATE THE EXPENSES AND BRING DOWN THE PROFITABILITY THE REBY AVOIDING PAYMENT OF TAXES. 2080/MUM/2017 3 THEREFORE, HE MADE AN ADDITION OF RS.64,28,706/ - TO THE INCOME DECLARED BY THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT (A). WE FIND THAT NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE LD. CIT(A) IN SPITE OF OPPORTUNITIES GIVEN BY HIM. THE LD. CIT(A) AGREED WITH THE REASONS GIVEN BY THE AO AND CONFIRMED THE ADDITION OF RS.64,28,706/ - . 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE LD. CIT(A) SHOULD HAVE GIVEN FAIR AND REASONABLE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE CASE. 6. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE LD. CIT(A) HAD GIVEN NUMEROUS OPPORTUNITIES TO THE ASS ESSEE TO EXPLAIN HIS CASE. BUT THE ASSESSEE FAILED TO AVAIL THE SAME. THEREFORE, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE FIND THAT THE AO HAS MENTIONED AT PARA 3.4 OF HIS ASSESSMENT ORDER DATED 27.02.2015 THAT IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED BY HIM THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FILED SOME DETAILS CALLED FOR BUT EXPRESSED HIS INABILITY TO PRODUCE THE CONCERNED FOUR PARTIES AND ALSO FAILED TO SUBMIT DETAILS SUCH AS DELIVERY CHALLAN, TRANSPORT BILLS, WEIGH BRIDGE SLIP AND STOCK REGISTER ETC . ALSO AT P ARA 3.7 OF THE ASSESSMENT ORDER, THE AO HAS MENTIONED THAT DOCUMENTS LIKE PURCHASE BILLS, DELIVERY CHALLANS AND PAYMENT 2080/MUM/2017 4 THROUGH BA NKING CHANNEL DO NOT PROVE THE GENUINENESS OF THE TRANSACTIONS. THUS WE FIND THAT THE AO HAS NOT MENTIONED IN THE ASSESSMENT ORDER THE DETAILS FILED BY THE ASSESSEE. HE IS SILENT ON THIS ISSUE. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CI T(A) AND RESTORE THE MATTER TO HIM TO EXAMINE THE ISSUE AND PASS AN ORDER AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT(A) AND FILE THE RELEVANT DETAILS BEFORE HIM. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2017. SD/ - SD/ - (MAHAVIR SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 04/ 0 9/2017 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI