M/s. Malav Association, Ahmedabad V. The Dy.CIT, Circle-9, Ahmedabad

ITA 2358/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8438 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 07-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Keywords: Bogus purchase
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 2358/AHD/2015 (ASSESSMENT YEAR: 2011-12) M/S. MALAV ASSOCIATION 401, APM SHOPPING MALL, OPP. SUN-N-STEP CLUB, SOLA ROAD, AHMEDABAD 380061 APPELLA NT VS. THE DCIT, CIRCLE-9, PRATYAKSH KAR BHAVAN, AMBAWADI, AHMEDABAD RESPONDENT PAN: AABAM1521C /BY ASSESSEE : SHRI S. N. DIVATIA, A.R. /BY REVENUE : SHRI PRASOON KABRA , SR. D.R. /DATE OF HEARING : 29.09.2017 /DATE OF PRONOUNCEMENT : 29.09.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 ARISES AGAINST THE CIT(A)-4, AHMEDABADS EX PARTE ORDER DATED 09.06.20 15 IN CASE NO. CIT(A)- 4/302/CIR.4(2)/14-15, UPHOLDING ASSESSING OFFICERS ACTION DISALLOWING ALLEGED BOGUS PURCHASES AMOUNTING TO RS.15,00,074/- IN ASSE SSMENT ORDER DATED 20 TH ITA NO. 2358/AHD/15 [M/S. MALAV ASSOCIATION VS. DCI T] A.Y. 2011-12 - 2 - MARCH, 2014, IN PROCEEDINGS U/S. 143(3) OF THE INCO ME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH SIDES. CASE FILE PERUSED. 2. RELEVANT FACTS ARE IN A VERY NARROW COMPASS. TH IS ASSESSEE IS A BUILDER, PROPERTY DEVELOPER, ORGANIZER DEVELOPING REAL ESTAT E HOUSING PROJECTS. IT CLAIMED TO HAVE PURCHASED VARIOUS CONSTRUCTION MATERIALS FROM ONE M/S. VISATKRUPA ENTERPRISE. THE ASSESSING OFFICER NOTICED ITS FAIL URE IN NOT BEING ABLE TO PRODUCE THE SAID PAYEES. HE FURTHER DEPUTED DEPARTMENT OFF ICIALS FOR ON THE SPOT VERIFICATION. THEY REPORTED THAT THE SAID ADDRESS DID NOT HAVE ASSESSEES PAYEE BEST AT THAT PLACE. THE ASSESSING OFFICER THEREAFTER IS SUED SECTION 133(6) NOTICE. THE SAME STOOD UNREPLIED. THE ASSESSEE ON THE OTHER HA ND CLAIMED TO HAVE PROVIDED ADDRESS, NAME, TIN NO., INVOICES AND PAN DETAILS. THE ASSESSING OFFICER CONCLUDED IN ASSESSMENT ORDER THAT THE SAID DETAIL WERE NOT SUFFICIENT TO PROVE THAT THE ASSESSEE HAD INCURRED THE IMPUGNED EXPENDITURE FOR COMMERCIAL CONSIDERATION WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF ITS BUSIN ESS. HE THEREFORE DISALLOWED THE ABOVE PURCHASES AMOUNTING TO RS.15,00,074/-. 3. THE CIT(A) AFFIRMS THE IMPUGNED DISALLOWANCE IN HIS EX PARTE ORDER. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. IT EMERGES FROM THE CIT(A)S ORDER THAT HE ISSUED FOUR HEARING NOTICES TO THE ASSESSEE ON 23.04.2015, 30.04.2015, 13.05.2015 AND 26.05.201 5 FIXING THE CASE ON 28.04.2015, 13.05.2015, 25.05.2015 AND 04.06.2015; RESPECTIVELY. THE ASSESSEES NON APPEARANCE THEREIN IN ANY OF THE SAID FOUR OCCA SIONS MADE THE CIT(A) TO PASS THE IMPUGNED EX PARTE ORDER CONFIRMING THE IMPUGNED DISALLOWANCE. WE NOTICE IN THIS BACKDROP THAT THERE IS NOT EVEN A SLIGHT INDIC ATION IN THE LOWER APPELLATE ORDER THAT THE ASSESSEE HAD BEEN SERVED ANY OF THE FOUR H EARING NOTICES. THE ASSESSEE REITERATES BEFORE US THAT IT HAS ALWAYS BEEN WILLIN G TO PURSUE ITS INSTANT LIS. WE THEREFORE OBSERVE IN LARGER INTEREST OF JUSTICE THA T IT DESERVES ONE MORE INNINGS BEFORE THE CIT(A). WE ORDER ACCORDINGLY. THE CIT( A) IS DIRECTED TO RE-ADJUDICATE ITA NO. 2358/AHD/15 [M/S. MALAV ASSOCIATION VS. DCI T] A.Y. 2011-12 - 3 - ASSESSEES APPEAL ON MERITS AFTER AFFORDING IT THRE E EFFECTIVE OPPORTUNITIES OF HEARING TO ASSESSEE. 5. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF SEPTEMBER, 2017.] SD/- SD/- ( MANISH BORAD ) ( S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL M EMBER AHMEDABAD: DATED 29/09/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0