PRAKASH M. JAIN, MUMBAI V. INCOME TAX OFFICER 19(2)(5), MUMBAI

ITA 2264/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0597 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Opportunity of being heard; Reasonable cause
• Section: 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 2264 / MUM/ 201 8 ( / ASSESSMENT YEAR: 20 10 - 11 ) MR. PRAKASH M. JAIN KULDEEP STEEL CENTRE SHREE KANTI BHAVAN BLDG, NO. 13, SHOP NO.2, 3 RD CROSS LANE, 6 TH KHETWADI BANK ROAD, MUMBAI - 400004 . / VS. ITO 19(2)(5) MATRUMANDIR GRANT ROAD, MUMBAI - 400007 . ./ ./ PAN/GIR NO. : AABPJ 4763 G ( / APPEL LANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 12 . 11 .201 8 / DATE OF PRONOUNCEMENT : 30. 11 . 201 8 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 28 .1 2 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 6 0 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 10 - 1 1 . 2 . THE ASS ESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. GROUND NO - 1 REVENUE BY : SHRI AJAY KUMAR OJJA (DR) ASSESSEE BY: NONE ITA NO. 2264 / M/201 8 A.Y.20 10 - 11 2 IN THE FACTS AND CIRCUM STANCES OF THE CASE AND IN LAW THE LEARNED INCOME T AX OFFICER ERRED IN DISMISSING THE RECTIFICATION APPLICATION OF THE APPELLANT AND DISMISSING THE APPEAL IN LIMINE WITHOUT AP PRECIATING. THE FACT THAT THE: A. THAT THE ORIGINAL APPEAL MANUALLY FILED IN THE OFFICE OF THE CIT (APPEAL) 30 ON 04 .2016 WAS M TIME, B. THAT THE APPEAL HAS FILED ELECTRONICALLY ON ]4. 07.2016 IS DELAYED BY ONE MONTH. WHICH WAS DUE TO THE REASONABLE CAUSE. THE HON'BLE C.T.T. (APPEAL) OUGHT TO HAVE CONDONED THE DELAY IN FIFING THE APPEAL. GROUND NO - 2 THE LEARNED CIT, (APPEAL) ERRED IN NOT FOLLOWING THE DECISION OF THE HON'BLE DELHI ITAT, IN THE CASE IF JAGBIR SINGH SHARMA VS, ACIT, ITA NO. 809/DEL/2017 DECIDED ON 05.06.2017 WHICH WAS BROUGHT TO HIS NOTICE. WITHOUT PREJUDICE LO ABOVE GROUNDS OF APPEAL. GROUND NO - 3 THE LEARNED CIT APPEAL ERRED IN NOT ADJUDICATING THE RE - OPENING OF ASSESSMENT U/S 147 OF THE INCOME TAX ACT, GROUND NO. 4 ADDITION OF RS.7571 99/ - ON ACCOUNT OF SUSPICIOUS PURCHASES. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT APPEAL ERRED IN NOT ADJUDICATING THE ADDITION SUSPICIOUS PURCHASES OF RS.757L99/ - WITHOUT GIVING AN OPPORTUNITY TO THE APPELLANT OF BEING HEARD. THE APPELLANT CARVE LEAVE TO ADD, AMEND ALTER OR DELETE ANY OR ALL THE ABOVE GROUND OF APPEAL, 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 24 . 09 .20 10 FOR THE A.Y. 2010 - 11 DECLARING TO TAL I NCOME TO THE TUNE OF RS.4,42 ,640 / - . T HE CASE WAS REOPENED AFTER RECORDING THE REASON AND NOTICE U/S 148 OF THE ACT DATED 22.09.2014 WAS ISSUED AND SERVED UPON THE ASSESSEE. THEREAFTER, THE NOTICE U/S 142(1) OF THE ACT WAS ALSO ISSUED AND SERVED UPON THE ASSESSEE. THE CASE OF THE ASSE SSEE WAS REOPENED ON ACCOUNT OF THE INFORMATION RECEIVED FROM THE OFFICE OF DGIT VIDE LETTER DATED 26.12.2013 IN WHICH IT WAS SPECIFICALLY CONVEYED THAT THE ASSESSEE HAS RAISED THE BOGUS PURCHASE FROM NINE PARTIES TO THE TUNE OF RS.2,84,38,886/ - . AFTER TH E REPLY OF THE ASSESSEE , 12.5% OF THE TOTAL AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE AND THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS. 39,97,500/ - . THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) ITA NO. 2264 / M/201 8 A.Y.20 10 - 11 3 WHO DISMISSED THE APPEAL OF THE AS SESSEE, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE CIT(A) DID NOT DECIDE THE CASE ON MERITS. THE ASSESSEE FILED THE APPEAL MANUALLY BEFORE THE CIT(A) 30 ON 18.04.2016 WHICH WAS WELL - IN - TIME. HOWEVER, THE ASSESSEE HAS FILED THE APPEAL ELECTRONICALLY ON 14.07.2016 WHICH WAS DELAYED BY ONE MONTH. THE CIT(A) HAS DISMISSED THE APPEAL ON ACCOUNT OF FILING THE APPEAL DEL AYED ELECTRONICALLY BY ONE MONTH I.E. ON 14.07.2016 . T HE CIT(A) DID NOT CONDONE THE DELAY. ON APPRAISAL OF THE RECORD, WE NOTICED THAT IN FACT THE ASSESSEE HAS FILED THE APPEAL MANUALLY ON 18.04.2016 WHICH WAS WELL IN TIME. THE DELAY OF FILING THE APPEAL E LECTRONICALLY IS NOT SO MUCH DELAY SPECIFICALLY IN THE SAID CIRCUMSTANCES WHEN THE CASE IS LIABLE TO BE DECIDED ON MERITS. THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.7,57,199/ - ON ACCOUNT SUSPICIOUS PURCHASE . THE MATTER OF CONTROVERSY IS REQUIRED TO BE ADJUDICATE ON MERITS, THEREFORE, IN THE INTEREST OF JUSTICE W E CONDONE THE DELAY AND RESTORED THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 2264 / M/201 8 A.Y.20 10 - 11 4 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 30. 11 . 2018 . SD/ - SD/ - ( R. C. SHARMA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL M EMBER MUMBAI; DATED : 30. 11 . 2018 . VIJAY / 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