BHAGWANJI KHIMJI NANDU, MUMBAI V. ITO 12(1)(4), MUMBAI

ITA 2572/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3521 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 05-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Keywords: Bogus purchase; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER IT A NO. 2572 /MUM/20 15 : (A.Y : 20 1 0 - 11 ) BHAGWANJI KHIMJI NANDU 211/212, PRAGATI INDUSTRIAL ESTATE, N.M. JOSHI MARG, LOWER PAREL, MUMBAI 400 011 ( APPELLANT ) PAN : A DSPN7635B VS. ITO - 12 ( 1 )( 4 ), MUMBAI (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI A.K. KARDAM DATE OF HEARING : 20/07 /2016 DATE OF PRONOUNCEMENT : 19 /0 8 /2016 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 28 , MUMBAI DATED 2 1 . 01 .20 15 , PERTAINING TO THE ASSESSMENT YEAR 20 1 0 - 11 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER , MUMBAI DATED 19 . 03 .20 1 3 UNDER SECTION 143 ( 3 ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS ON THE FACTS AND IN THE LAW. 2 BHAGWANJI KHIMJI NANDU ITA NO. 2572/MUM/2015 2. THE ASSESSEE WAS NOT ABLE TO ATTEND THE APPEAL DUE TO UNAVOIDABLE CIRCUMSTANCES ON THE CALLED DATE AND EVEN ON FINAL HEARING. 3. THE ASSESSEE HERE MAKING APPEAL THAT HE SHOULD BE GIVEN OPPORTUNITY OF BEING HEARD SO HE CAN PRODUCE THE DOCUMENTS AND EVIDENCES AND GET THE JUSTIC E. 4. FOR FURTHER GROUNDS CAN REFER THE GROUNDS SUBMITTED AT THE TIME OF COMMISSIONER APPEAL. 3. INSPITE OF ISSUANCE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING, THEREFORE, WE PROCEED TO DECIDE THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LD. DR ON MERIT IN TERMS OF RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963. 4 . IN THIS CASE, IT IS NOTED THAT THE BUSINESS OF THE ASSESSEE IS OF PRINTING AND FOR ASSESSMENT YEAR 2010 - 11, HE FILED RETURN OF INCOME DECLARING AN INCOME OF RS.17,10,220/ - . IN THE SCRUTINY ASSESSMENT TOTAL INCOME WAS ASSESSED AT RS.57,44,660/ - AFTER MAKING VARIOUS ADDITIONS WHICH INCLUDED AN ADDITION OF RS.8,24,116/ - ON ACCOUNT OF BOGUS PURCHASES . THE ADDITION WITH RESPECT TO BOGUS PURCHASES WAS CH ALLENGED IN APPEAL BEFORE THE CIT(A), WHO HAS ALSO SUSTAINED THE ACTION OF THE ASSESSING OFFICER. THE ORDER OF CIT(A) REVEALS THAT ON THE APPOINTED DATE OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE AND NOR WAS ANY ADJOURNMENT SOUGHT AND, THEREFORE, HE CONCLUDED THAT ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE APPEAL. FURTHER, THE CIT(A) HAS ENDORSED THE ADDITION OF RS.8,24,116/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF THE DISCUSSION MADE IN THE ASSESSMENT 3 BHAGWANJI KHIMJI NANDU ITA NO. 2572/MUM/2015 ORDER. AGAINST SUCH A DECISION, ASSE SSEE IS IN APPEAL BEFORE US ON THE ABOVE STATED GROUNDS OF APPEAL. 5. AT THE TIME OF HEARING, IT WAS POINTED OUT TO THE LD. DR THAT THE CIT(A) HAS DISMISSED THE APPEAL WITHOUT DECIDING ON MERITS THE G ROUNDS RAISED BEFORE HIM, WHICH IS UNSUSTAINABLE IN LAW . IT WAS THEREFORE POINTED OUT THAT THE MATTER DESERVES TO BE REVISITED BY THE CIT(A) AS PER LAW. 6. HAVING CONSIDERED THE IMPUGNED ORDER AND THE SUBMISSIONS OF THE LD. DR, WE FIND THAT IN THE PRESENT CASE THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE COMMISSIONER (APPEALS) WITHOUT GOING INTO THE MERITS OF THE ISSUES RAISED BEFORE HIM. SEC. 250(6) OF THE ACT PRESCRIBES THAT THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINAT ION, THE DECISION THEREON AND THE REASONS FOR SUCH A DECISION. OSTENSIBLY, THE CIT(A) IS OBLIGATED TO DISPOSE OF THE APPEAL IN THE MANNER PRESCRIBED IN SEC. 250(6) OF THE ACT, WHICH REQUIRES THAT THE ISSUES RAISED BEFORE HIM BY WAY OF THE GROUNDS OF APPEA L ARE ADDRESSED, DECISION RENDERED THEREON BY STATING THE REASONS FOR SUCH A DECISION. THE SAID APPROACH IS CONSPICUOUS BY ITS ABSENCE IN THE IMPUGNED ORDER OF THE CIT(A), WHEREIN THE APPEAL HAS BEEN DISMISSED IN LIMINE WITHOUT ADVERTING TO THE MERITS OF THE GROUNDS OF APPEAL RAISED BEFORE HIM. THEREFORE, ON THIS COUNT ITSELF, THE IMPUGNED ORDER OF CIT(A) IS UNSUSTAINABLE. BE THAT AS IT MAY, WE DEEM IT FIT AND PROPER TO SET - ASIDE THE IMPUGNED ORDER OF CIT(A) AND REMAND THE APPEAL BACK TO 4 BHAGWANJI KHIMJI NANDU ITA NO. 2572/MUM/2015 HIS FILE FOR ADJ UDICATION AFRESH AS PER LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 T H AUGUST, 2016. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 9 T H AUGUST , 2016 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, I BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI