Resplenda Expressions Pvt. Ltd., CHENNAI V. ITO Corporate Ward 5(4), CHENNAI

ITA 2935/CHNY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6026 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 01-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Bogus purchase; Principle of natural justice; Set aside
• Section: 143(3); 234B; 147; 148; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . !', $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NOS.2935, 2936 & 2937/CHNY/2017 ' (' / ASSESSMENT YEARS : 2008-09, 2008-09 & 2009-10 M/S RESPLENDA EXPRESSIONS PVT. LTD., NO.5, 4 TH FLOOR, 1 ST MAIN ROAD, CIT COLONY, MYLAPORE, CHENNAI - 600 004. PAN : AADCR 6466 M V. THE INCOME TAX OFFICER, CORPORATE WARD 5(4), CHENNAI. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH. T. BANUSEKAR, CA ,-*+ . / / RESPONDENT BY : DR. S. PANDIAN, JCIT 0 . 1$ / DATE OF HEARING : 25.07.2019 23( . 1$ / DATE OF PRONOUNCEMENT : 01.08.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : ALL THE THREE APPEALS OF THE ASSESSEE ARE DIRECT ED AGAINST THE COMMON ORDER PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS) -3, CHENNAI, DATED 30.08.2017 AND PERTAIN TO ASSESSMENT YEARS 2008-09 AND 2009-10. SINCE COMMON ISSUE ARIS ES FOR 2 I.T.A. NOS.2935 TO 2937/CHNY/17 CONSIDERATION IS IN ALL THESE APPEALS, WE HEARD THE SE APPEALS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON O RDER. 2. SH. T. BANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSEE HAS FILED TWO APPEALS. I.T.A. NO.2935/CHNY/2017 RELATE S TO APPEAL AGAINST ASSESSMENT PASSED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT' ). I.T.A. NO.2936/CHNY/2017 ARISES OUT OF THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 OF THE ACT. 3. SH. T. BANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT ON THE ISSUES ARISE FOR CONSIDERATIO N IN I.T.A. NO.2935/CHNY/2017, THE FIRST ISSUE IS REGARDING REO PENING OF ASSESSMENT AND THE SECOND ISSUE IS WITH REGARD TO A DDITION OF 40,66,090/- AS BOGUS PURCHASES. ACCORDING TO THE L D. REPRESENTATIVE, EVEN THOUGH THE ASSESSMENT WAS REOP ENED BEYOND FOUR YEARS, THE ASSESSING OFFICER HAS NOT DISPOSED OF THE OBJECTION OF THE ASSESSEE FOR REOPENING. REFERRING TO THE AD DITION MADE BY THE ASSESSING OFFICER ON MERIT, THE LD. REPRESENTAT IVE SUBMITTED THAT THE ASSESSING OFFICER MAINLY PLACED HER RELIANCE ON THE REPORT SAID 3 I.T.A. NOS.2935 TO 2937/CHNY/17 TO BE RECEIVED FROM THE INVESTIGATION WING OF THE D EPARTMENT AT MUMBAI. THE LD. REPRESENTATIVE FURTHER SUBMITTED T HAT THE INVESTIGATION REPORT WAS NOT FURNISHED TO THE ASSES SEE. 4. SH. T. BANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT IN I.T.A. NO.2936/CHNY/2017, THE ISS UE RELATES TO LEVY OF INTEREST UNDER SECTION 234A AND 234B OF THE ACT, WHICH IS CONSEQUENTIAL. THEREFORE, ACCORDING TO THE LD. REP RESENTATIVE, BOTH THE APPEALS OF THE ASSESSEE FOR ASSESSMENT YEAR 200 8-09 MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. 5. NOW COMING TO THE ASSESSMENT YEAR 2009-10, THE L D. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT HERE ALSO THE ISSUE ARISES FOR CONSIDERATION ON MERIT IS REGARDING BOGU S PURCHASES. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSMENT WAS REOPENED ON THE BASIS OF INVESTIGATION REPORT SAID TO BE REC EIVED FROM MUMBAI. THE COPY OF INVESTIGATION REPORT WAS NOT F URNISHED TO THE ASSESSEE, THEREFORE, THE LD. REPRESENTATIVE PRAYED THAT THE ASSESSING OFFICER MAY BE DIRECTED TO FURNISH A COPY OF THE INVESTIGATION REPORT AND DECIDE THE ISSUE ON MERIT. 4 I.T.A. NOS.2935 TO 2937/CHNY/17 6. WE HEARD DR. S. PANDIAN, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. ACCORDING TO THE LD. D.R., TH ERE WERE BOGUS PURCHASES. IT CAME TO THE NOTICE OF THE ASSESSING OFFICER FROM THE REPORT RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT MUMBAI. ACCORDING TO THE LD. D.R., ONE SHRI RAJEND RA JAIN, WHO WAS NAME LENDER, WAS EXAMINED. THE SAID SHRI RAJEN DRA JAIN IDENTIFIED THE ASSESSEE-COMPANY ALONG WITH THE AMOU NT OF BOGUS PURCHASES AS THE BENEFICIARY OF ACCOMMODATION ENTRY PROVIDED TO THEM. THEREFORE, ACCORDING TO THE LD. D.R., THE AS SESSING OFFICER HAS RIGHTLY REOPENED THE ASSESSMENT ON THE BASIS OF THE REPORT OF THE INVESTIGATION WING OF THE DEPARTMENT AT MUMBAI. ON A QUERY FROM THE BENCH WHETHER THE COPIES OF INVESTIGATION REPORT OF THE DEPARTMENT AT MUMBAI WERE FURNISHED TO THE ASSESSEE ? THE LD. D.R. SUBMITTED THAT THERE WAS NO REFERENCE ABOUT FU RNISHING THE COPIES OF INVESTIGATION REPORT TO THE ASSESSEE IN T HE IMPUGNED ORDER OF THE ASSESSING OFFICER AS WELL AS THE CIT(APPEALS ). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER REOPENED THE ASSESSMENT AFTER ISSUING NOTIC E UNDER SECTION 148 OF THE ACT ON THE BASIS OF THE REPORT / INFORMA TION SAID TO BE 5 I.T.A. NOS.2935 TO 2937/CHNY/17 RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTM ENT AT MUMBAI. THIS REPORT IS THE BASE FOR MAKING ADDITION. HOWEV ER, THE SAID REPORT WAS NOT FURNISHED TO THE ASSESSEE. THIS TRI BUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSING OFFICER PLACED HER RELIANCE ON THE INVESTIGATION REPORT SAID TO BE REC EIVED FROM THE INVESTIGATION WING OF THE DEPARTMENT AT MUMBAI, COP Y OF THE SAME SHOULD BE FURNISHED TO THE ASSESSEE SO THAT THE ASS ESSEE MAY RESPOND TO THE REPORT BY FILING NECESSARY REPLY. S INCE SUCH AN ACTION WAS NOT TAKEN BY THE ASSESSING OFFICER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, ORDERS OF BOTH THE A UTHORITIES BELOW ARE SET ASIDE IN ALL THE THREE APPEALS OF THE ASSESSEE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IS REMITTED BACK TO TH E FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE MATTER AFTER FURNISHING COPIES OF THE INVESTIGATION REPORT SAID TO BE RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTM ENT AT MUMBAI AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANC E WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 8. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 I.T.A. NOS.2935 TO 2937/CHNY/17 ORDER PRONOUNCED IN THE COURT ON 1 ST AUGUST, 2019 AT CHENNAI. SD/- SD/- (. !') ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 1 ST AUGUST, 2019. KRI. . ,167 87(1 /COPY TO: 1. *+/ APPELLANT 2. ,-*+/ RESPONDENT 3. 0 91 () /CIT(A)-3, CHENNAI 4. PRINCIPAL CIT- 5, CHENNAI 5. 7: ,1 /DR 6. ' ; /GF.