J.K.BROS., MUMBAI V. ITO, WD-19(2)(1), MUMBAI

ITA 3010/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8446 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice; Accommodation entries; Set aside
• Section: 142(1); 143(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B. R. BASKARAN , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 3010 /MUM/201 8 ( / ASSESSMENT YEAR: 20 09 - 10 ) M/S. J.K. BROS C/O KIRIT K. GANDHI B - 131, SIMANDHAR CITY, TRIMANDIR SANKUL, AHMEDABAD KALOL HIGHWAY, ADALAJ, GANDHINAGAR 382421 . / VS. ITO WARD 19(2)(1) MUMBAI. ./ ./ PAN/GIR NO. : AADFJ5267B ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 09 / 0 4 / 201 9 / DATE OF PRONOUNCEMENT : 09 / 04/ 201 9 / O R D E R PER AMARJIT SINGH , J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 15 . 03 .201 8 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 30 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 0 9 - 10 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS: - 1. THE ID CI T(APPEALS) ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ADDITIONS OF RS. 26.62.510/ - BEING A 12.5 % OF THE ALLEGED REVEN UE BY : SHRI CHAITANYA ANJARIA (DR) ASSESSEE BY: SHRI VIJAY MEHTA ITA NO. 3010 / M/201 8 A.Y.20 09 - 10 2 BOGUS PURCHASES MADE BY T HE APPELLANT TO THE TUNE OF RS. 2.13,00,078/ - . 2. THE ID CI T(APPEALS) ERRED ON FAC TS THAT THE PROPER OPPORTUNITIES WAS NOT GIVEN TO THE APPELLANT FOR MAKING SUBMISSION AS THE APPELLANT HAS CHANGED HIS ADDRESS AND MOVE TO AHMEDABAD. 3. THE APPELLANT CRAVES LEAVE TO ADD. AMEND, ALTER, EDIT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE G ROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. . 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29 . 09 .20 0 9 DECLARING TO TAL INCOME TO THE TUNE OF RS. 1,37,329 / - FOR THE A.Y. 2009 - 10 . T HE RETURN WAS P ROCESSED U/S 143(1) OF THE I.T. ACT, 1961. THEREAFTER, THE CASE WAS REOPENED U/S 147 OF THE ACT AND NOTICE U/S 148 OF THE ACT WAS ALSO ISSUED. THEREAFTER, THE NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE FIR M IS ENGAGED IN THE BUSINESS OF TRADING IN FERROUS AND NON - FERROUS METAL. AN INFORMATION WAS RECEIVED FROM DGIT (INV.) WING, MUMBAI, ABOUT HAVING RECEIVED VITAL INFORMATION INITIALLY FROM THE SALES TAX DEPARTMENT OF MAHARASHTRA ABOUT SOME OF THE DEALERS UN DER MVAT 2002 INDULGING IN THE PRACTICE OF PROVIDING ACCOMMODATION ENTRIES IN THE FORM OF ISSUING BOGUS SALES/PURCHASE BILLS WITHOUT SUPPLYING ANY GOODS BUT PROVIDING ACCOMMODATION ENTRIES ONLY. THE ASSESSEE WAS FOUND ONE OF THE BENEFICIARY WHO RECEIVED TH E BOGUS ENTRIES FROM 22 PARTIES WHOSE NAMES ARE HEREBY MENTIONED BELOW.: - S. NO. NAME OF THE PARTY F.Y. AMOUNT 1 SHRIJI TRADERS 2008 - 09 10,77,159 2 NB TRADERS 2008 - 09 6,04,084 3 JAINAM TRADE CORPORATION 2008 - 09 9,04,971 4 SAILLELA TRADING P. LTD. 2008 - 09 10,15,324 ITA NO. 3010 / M/201 8 A.Y.20 09 - 10 3 5 SYMPHONY METALAM P. LTD. 2008 - 09 1,20,14,989 6 PARASNATH ENTERPRISES 2008 - 09 12,45,561 7 STHAPNA TRADE IMPEX P. LTD. 2008 - 09 14,48,585 8 MANAV IMPEX 2008 - 09 6,11,832 9 PRAYAN TRADIN COMPANY 2008 - 09 4,14,336 10 KC ENTERPRISES 2008 - 09 6 ,07,422 11 MEETI TRADE IMPEX 2008 - 09 10,80,729 12 MOTION TRADERS P. LTD. 2008 - 09 10,97,824 13 SNEHAL ENTERPRISES 2008 - 09 20,40,318 14 PAYAL ENTERPRISES 2008 - 09 4,63,008 15 DAKSHA ENTERPRISES 2008 - 09 8,00,603 16 REAL ENTERPRISES 2008 - 09 10,08,932 17 NAVPAD EXPORTS P. LTD. 2008 - 09 9,10,452 18 TOP SHOP TRADING COMPANY 2008 - 09 9,14,607 19 KK TRADING COMPANY 2008 - 09 1,80,544 20 KAULIK ENTERPRISES 2008 - 09 10,66,173 21 VINAYAK TRADING CO 2008 - 09 12,32,380 22 MAHAVIR ENTERPRISES 2008 - 09 13,73,736 TOTA L 2,13,00,078 T HE ASSESSEE TOOK THE BOGUS PURCHASE ENTRIES IN SUM OF RS.2,13,00,078/ - IN TOTAL. THE NOTICE WAS GIVEN TO THE ASSESSEE AND FINDING NON - SATISFACTORY REPLY, THE 12.5% OF THE BOGUS PURCHASE OF RS.2,13,00,078/ - I.E. 26,62,510/ - WAS ADDED TO THE INCOME OF THE ASSESSEE. FEELING AGGRIEVED, T HE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENT ATIVE OF THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE DID NOT APPEAR BEFORE US. ITA NO. 3010 / M/201 8 A.Y.20 09 - 10 4 ON APPRAISAL OF THE ORDER OF THE CIT(A) DATED 15.03.2018 , WE NOTICED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE WITHOUT GIVING AN OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE . A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON ALL THE ISSUES 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. 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 09 /04/2019 . SD/ - SD/ - ( B. R. BASKARAN ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 09 /04/2019 V IJAY SR. P.S. ITA NO. 3010 / M/201 8 A.Y.20 09 - 10 5 / 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// (SR. PRIVATE SECRETARY) , / ITAT, MUMBAI