MANISH P. LATHIA, HUF, Mumbai V. Income Tax Officer 27 (2) (2), Mumbai

ITA 2905/MUM/2024

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 5566 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: D
• Next Hearing Date: 06-08-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 20-05-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus
• Section: 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SUNIL KUMAR SINGH (JUDICIAL MEMBER) ITA No. 2905/MUM/2024 Assessment Year: 2009-10 Manish P. Lathia, HUF 11-B, Shri Lal Ashish Garodia Nagar, Ghatkopar (East), Mumbai-400077. Vs. ITO-27(2)(2), Mumbai. PAN NO. AAEHM 8671 B Appellant Respondent Assessee by : Mr. Mehul Shah Revenue by : Mrs. Mahita Nair, Sr. DR Date of Hearing : 07/08/2024 Date of pronouncement : 19/08/2024 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 07.05.2024, passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2009-10, raising following grounds: 1. On the facts, and in circumstances of the case, and in law, learned Commissioner of Income rectify detect in filing the appeal. 2. On the facts, and in Assessing Officer erred in imposing penalty under section 271 (1) (c) of the Income-tax Act 1961 without appreciating that the notice initiating penalty under section 274 read with section 271 (1) (c) was bad in l 3. On the facts, and in circumstances of the case, and in law, the Assessing Officer erred in imposing penalty under section 271 (1) (c) of the Income-tax Act 1961 amounting to RS 104,296 being tax sought to be evaded on estimated addition sustained @ purchases without appreciating that the addition of alleged non purchases was made on a difference of opinion; and there was neither concealment of income nor filing of inaccurate of income, as the Appellant had furnished all further supported by the order of MAVT Department accepting the same purchases which the Assessing Officer treated as non genuine. 4. On the facts and circumstances of the case, and in law, the Ass Officer erred in considering education cess as part of tax although as per the definition of tax under the Income not partake character of "Tax", and is always added to the sum of tax by virtue of the provision of r 2. Briefly stated, facts of the case are that against the penalty order dated 20.03.2019 passed by the Assessing Officer u/s 271(1)(c) of the Income assessment year under consideration, t before the Ld. CIT(A) and filed Form No. 35 statement of the facts etc. However, the Ld. CIT(A) has noted that assessee had attached the grounds of appeal and statement of the facts with the Form no. 35 pertainin Shri Mahesh Kumar impugned order that he provided several opportunities to the assessee to furnish the relevant documents including grounds and 1. On the facts, and in circumstances of the case, and in law, learned Commissioner of Income-tax (Appeal) erred in not giving opportunity to rectify detect in filing the appeal. 2. On the facts, and in circumstances of the case, and in law, the Assessing Officer erred in imposing penalty under section 271 (1) (c) of the tax Act 1961 without appreciating that the notice initiating penalty under section 274 read with section 271 (1) (c) was bad in law. 3. On the facts, and in circumstances of the case, and in law, the Assessing Officer erred in imposing penalty under section 271 (1) (c) of the tax Act 1961 amounting to RS 104,296 being tax sought to be evaded on estimated addition sustained @ 12.5% of alleged bogus purchases without appreciating that the addition of alleged non purchases was made on a difference of opinion; and there was neither concealment of income nor filing of inaccurate of income, as the Appellant had furnished all material particulars in support of its claim of purchases further supported by the order of MAVT Department accepting the same purchases which the Assessing Officer treated as non genuine. 4. On the facts and circumstances of the case, and in law, the Ass Officer erred in considering education cess as part of tax although as per the definition of tax under the Income-tax Act 1961, education cess does not partake character of "Tax", and is always added to the sum of tax by virtue of the provision of relevant Finance Act. Briefly stated, facts of the case are that against the penalty order dated 20.03.2019 passed by the Assessing Officer u/s 271(1)(c) of the Income-tax Act, 1961 (in short ‘the Act’) for sment year under consideration, the assessee preferred appeal before the Ld. CIT(A) and filed Form No. 35 , grounds of appeal and statement of the facts etc. However, the Ld. CIT(A) has noted that assessee had attached the grounds of appeal and statement of the with the Form no. 35 pertaining to different assessee namely Shri Mahesh Kumar Joshi. The Ld. CIT(A) has noted in the impugned order that he provided several opportunities to the assessee to furnish the relevant documents including grounds and Manish P. Lathia, HUF 2 ITA No. 2905/MUM/2024 1. On the facts, and in circumstances of the case, and in law, learned tax (Appeal) erred in not giving opportunity to circumstances of the case, and in law, the Assessing Officer erred in imposing penalty under section 271 (1) (c) of the tax Act 1961 without appreciating that the notice initiating penalty aw. 3. On the facts, and in circumstances of the case, and in law, the Assessing Officer erred in imposing penalty under section 271 (1) (c) of the tax Act 1961 amounting to RS 104,296 being tax sought to be 12.5% of alleged bogus purchases without appreciating that the addition of alleged non-genuine purchases was made on a difference of opinion; and there was neither concealment of income nor filing of inaccurate of income, as the Appellant material particulars in support of its claim of purchases further supported by the order of MAVT Department accepting the same purchases which the Assessing Officer treated as non genuine. 4. On the facts and circumstances of the case, and in law, the Assessing Officer erred in considering education cess as part of tax although as per tax Act 1961, education cess does not partake character of "Tax", and is always added to the sum of tax by Briefly stated, facts of the case are that against the penalty order dated 20.03.2019 passed by the Assessing Officer u/s tax Act, 1961 (in short ‘the Act’) for ee preferred appeal grounds of appeal and statement of the facts etc. However, the Ld. CIT(A) has noted that assessee had attached the grounds of appeal and statement of the different assessee namely The Ld. CIT(A) has noted in the impugned order that he provided several opportunities to the assessee to furnish the relevant documents including grounds and statements of the facts not complied and therefore, appeal was dismissed. 3. Before us, the Ld. counsel for the assessee submitted that inadvertently, the concerned authorized representative though the Form No. 35 correctly of the facts of the other person. The various notices issued by the Ld. CIT(A) could not be complied as same were not received by the assessee . Before us, the Ld. counsel for the assessee has expressed willingness to appear before the Ld. grounds of appeal , statement of facts in relation to the case of the assessee and necessary documents 3.1 In light of the facts and circumstances surrounding this case, we are of the view that the matt substantive merits rather than being dismissed on procedural lapses, specifically the non error by the authorized representative. restore the appeal back to the Learned Commissioner of Income Tax (Appeals) for adjudication CIT(A) shall afford the assessee a reasonable opportunity of being heard. Upon receipt of the notice of hearing CIT(A), the assessee is instructed to promptly submit the grounds of appeal along with a statement of facts pertinent to the case. statements of the facts of the case of assessee, however same was not complied and therefore, appeal was dismissed. Before us, the Ld. counsel for the assessee submitted that inadvertently, the concerned authorized representative though the Form No. 35 correctly, but attached the grounds and statement of the facts of the other person. The various notices issued by the could not be complied as same were not received by the . Before us, the Ld. counsel for the assessee has expressed willingness to appear before the Ld. CIT(A) and file the correct statement of facts in relation to the case of the necessary documents in support of his claim. In light of the facts and circumstances surrounding this case, we are of the view that the matter should be adjudicated on its substantive merits rather than being dismissed on procedural , specifically the non-filing of the grounds of appeal due to an error by the authorized representative. Accordingly restore the appeal back to the Learned Commissioner of Income Tax adjudication in accordance with the law. The Learned CIT(A) shall afford the assessee a reasonable opportunity of being heard. Upon receipt of the notice of hearing from the Learned CIT(A), the assessee is instructed to promptly submit the grounds of appeal along with a statement of facts pertinent to the case. Manish P. Lathia, HUF 3 ITA No. 2905/MUM/2024 however same was Before us, the Ld. counsel for the assessee submitted that inadvertently, the concerned authorized representative though filed s and statement of the facts of the other person. The various notices issued by the could not be complied as same were not received by the . Before us, the Ld. counsel for the assessee has expressed CIT(A) and file the correct statement of facts in relation to the case of the support of his claim. In light of the facts and circumstances surrounding this case, er should be adjudicated on its substantive merits rather than being dismissed on procedural filing of the grounds of appeal due to an Accordingly, we hereby restore the appeal back to the Learned Commissioner of Income Tax in accordance with the law. The Learned CIT(A) shall afford the assessee a reasonable opportunity of being from the Learned CIT(A), the assessee is instructed to promptly submit the grounds of appeal along with a statement of facts pertinent to the case. 4. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Sd/ (SUNIL KUMAR SINGH JUDICIAL MEMBER Mumbai; Dated: 19/08/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// In the result, the appeal of the assessee is allowed for Order pronounced in the open Court on 19/08/2024. Sd/- (SUNIL KUMAR SINGH) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Manish P. Lathia, HUF 4 ITA No. 2905/MUM/2024 In the result, the appeal of the assessee is allowed for /08/2024. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai