INA JAYESH MEHTA, MUMBAI V. ITO WD 25(1)(1), MUMBAI

ITA 3075/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92984 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 16-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Keywords: Bogus purchase; Principle of natural justice
• Section: 143(3); 142(1); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' I ' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA , ACCOUNTANT MEMBER ITA NO. 3075/MUM/2013 (ASSESSMENT YEAR: 2009 - 10 ) SMT. INA JAYESH MEHTA VS. INCOME TAX OFFICER - 25(1)(1) A/3, ADITYA PARK, C.S. ROAD DAHISAR (E), MUMBAI 400068 MUMBAI PAN - AAOPM3451B APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI LOVE KUMAR DATE OF HEARING: 16.06. 2015 DATE OF PRONOUNCEMENT: 26 .06.2015 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY CIT(A) - 35, MUMBAI AND IT PERTAINS TO A.Y. 2009 - 10. NOTICE SENT TO THE ASSESSEE AT THE ADDRESS GIVEN IN FORM NO. 36 WAS RETURNED UNSERVED WITH THE POSTAL REMARKS LEFT. ASSESSEE DID NOT FURNIS H CHANGE OF ADDRESS, IF ANY. UNDER THE CIRCUMSTANCES WE PROCEED TO DISPOSE OF THE APPEAL EXPARTE, QUA ASSESSEE. 2. ASSESSEE RAISED THE FOLLOWING GROUNDS WITHOUT PREJUDICE TO EACH OTHER: - 1) THAT THE LEARNED CIT(A) HAS NOT PASSED ORDER BASED ON THE SUBMISSION MADE BY APPELLANT IN TRUE AND POSITIVE MANNE R AND HAS PASSED IMPUGNED ORDER; 2) THAT THE LEARNED CIT(A) HAS NOT GIVEN ANY AUTHORITY NOR EXAMINED ISSUE ON THE DIRECTION TO BE PROVIDED TO THE LEARNED ASSESSING OFFICER FOR PROVIDING DOCUMENT AND THEREBY IN VIOLA TION OF THE LAW LAID DOWN BY THE HON. SUPREME COURT IN THE CASE OF SURAJMAL MOHTA & CO. V/S A.V. VISHWANATHA SASTRI (1954) (26 ITR 1 SC) HAS PASSED THE IMPUGNED ORDER; 3) THAT THE LEARNED CIT(A) FAILED TO CONSIDER THE FACTS WITH REGARDS TO PASSING OF THE ORDE R UNDER SECTION 143(3) WITHOUT ANY EVIDENCES AND ITA NO. 3075/MUM/2013 SMT. INA JAYESH MEHTA 2 THEREBY WITHOUT PROVIDING REASONS REJECTED AUDITED BOOKS OF ACCOUNTS AND PASSED THE IMPUGNED ORDER; 4) THAT THE LEARNED CIT(A) FAILS TO CONSIDER PARA NO. 37 OF INSTRUCTION DATED 25 TH OCTOBER, 2005 OF CBDT AND W ITHOUT JUSTIFIABLE REASONS WITH A SPEAKING ORDER OF HON. CIT - XIII, MUMBAI, THE LEARNED ASSESSING OFFICER HAS PASSED ORDER HAS BEEN IGNORED; 5) THAT THE LEARNED CIT(A) HAS NOT PROPERLY DETERMINED THE NET PROFIT NOR PROVIDED COMPARABLE SUMS OF ASSESSEE TO JUSTI FY THE PROFIT FOR APPELLANT AND PASSED THE IMPUGNED ORDER; 6) THAT THE LEARNED CIT(A) FAILED TO CONSIDERED THE PROVISIONS OF SECTION 33 AND ORDER XX OF THE CIVIL PROCEDURE CODE READ WITH THE LAW AND PASSED OF JUDGEMENT WITH SPEAKING ORDER AND WITH JUSTIFYING THE FACTS AND PASSED IMPUGNED ORDER; 7) THAT THE LEARNED CIT(A) HAS PASSED THE ORDER WHICH IS HAVING LACK OF INHERENT JURISDICTION NULLITY TO BIND THE APPELLANT. 3. FACTS NECESSARY FOR DISPOSAL OF THE APPEAL ARE STATED IN BRIEF. ASSESSEE IS ENGAGED IN THE BUSIN ESS OF CHEMICAL PRODUCTS. IN RESPECT OF THE PREVIOUS YEAR RELEVANT TO A.Y. 2009 - 10 ASSESSEE DECLARED TOTAL INCOME OF ` 9,74,090/ - . THE RETURN OF INCOME HAVING BEEN SELECTED FOR SCRUTINY THE AO CALLED FOR RECORDS AND EXAMINED THE SAME TO ENABLE HIM TO COMPLE TE THE ASSESSMENT. DURING THE ASSESSMENT PROCEEDINGS AO ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT TO VARIOUS PARTIES LISTED OUT IN THE ASSESSMENT ORDER AND ALSO BROUGHT IT TO THE NOTICE OF THE ASSESSEE BUT ON THE PART OF THE ASSESSEE, SHE DID NOT PRODU CE ANY DOCUMENTARY EVIDENCE ABOUT THE EXISTENCE OF THE PARTIES, I.E. SHE DID NOT OBTAIN CONFIRMATION LETTE RS. ASSESSEE DID NOT EVEN SIGN THE LEDGER ACCOUNTS, ETC. ON ACCOUNT THE CARELESSNESS ON THE PART OF THE ASSESSEE IN FURNISHING DOCUMENTARY EVIDENCE TH E AO PROCEEDED TO ADD BACK THE ENTIRE SALES AMOUNT AS INCOME OF THE ASSESSEE (AO TREAT ED THE SAME AS BOGUS SALES). AO HAD ALSO ISSUED NOTICE S UNDER SECTION 133(6) OF THE ACT TO THE PARTIES FROM WHOM SHE HAS MADE PURCHASES. ASSESSEE DID NOT PRODUCE THE LEDG ER ACCOUNT OR FILED CONFIRMATION LETTERS. THE AO REDUCED THE SAME FROM THE TRADING ACCOUNT, WHICH WOULD AUTOMATICALLY RESULT IN ENHANCEMENT OF NET PROFIT OF THE ASSESSEE. IN OTHER WORDS, THE AO CONCLUDED THAT THE ASSESSEE MADE BOGUS PURCHASES AND BOGUS SAL ES. 4. AGGRIEVED, ASSESSEE CONTENDED BEFORE THE CIT(A) THAT THE ASSESSMENT ORDER IS VITIATED BECAUSE HE HAS NOT FOLLOWED THE PRINCIPLES OF NATURAL JUSTICE. SHE QUOTED THE LEGAL MAXIM EXPERESSIO UNIUS EST EXCLUSIO ALTERIUS ITA NO. 3075/MUM/2013 SMT. INA JAYESH MEHTA 3 WHICH MEANS THAT IF A STATUTE PROVI DES FOR A THING TO BE DONE IN A PARTICULAR MANNER, THEN IT HAS TO BE DONE IN THAT MANNER AND RECOURSE TO OTHER MANNER IS NOT ALLOWED. I T WAS SUBMITTED THAT THOUGH THE CASE WAS SAID TO HAVE BEEN SELECTED FOR SCRUTINY AFTER OBTAINING APPROVAL FROM THE CCIT, MUMBAI, COPY OF THE SAID ORDER WAS NOT PROVIDED TO THE ASSESSEE, WHICH CLEARLY PROVES THAT THE ASSESSMENT ORDER IS PRIMA FACIE FALSE AND FRIVOLOUS. SHE ALSO CHALLENGED THE ISSUANCE OF NOTICES UNDER SECTION 143(2) AND 142(1) OF THE ACT ON THE GROUND THAT THE DATE OF SERVICE OF NOTICE, MODE OF SERVICE AND CONTENT THEREIN ARE NOT PROVIDED AND THUS THE ASSESSMENT IS BAD IN LAW. IT IS FURTHER C ONTENDED THAT NOTICES UNDER SECTION 133(6) HAVE BEEN ISSUED TO THE PARTIES TO WHOM SALES WERE MADE AND IT WAS ALLEGED BY THE AO THAT NO COPIES OF THE SALE INVOICES, ETC. WERE FURNISHED. IN THE INSTANT CASE ASSESSEE WAS NOT PERMITTED TO BE REPRESENTED BY AN ADVOCATE AND HENCE THE ASSESSMENT ORDER WAS BAD IN LAW. SHE ALSO CHALLENGED CHARGING OF INTEREST, DISALLOWANCE OF CLAIM UNDER SECTION 80C, ETC. 5. THE LEARNED CIT(A) OBSERVED THAT ASSESSEE HAS NOT FURNISHED EVIDENCE OF PAYMENT OF INSTITUTION FEES AND FAILED TO PRODUCE THE ORIGINAL CHALLAN TOWARDS PAYMENT OF APPEAL FEES. THEREFORE THE APPEAL WAS DISMISSED AS UNADMITTED. 6. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE US. NONE APPEARED FOR THE ASSESSEE. NO MATERIAL WAS PLACED ON RECORD TO PROVE THAT ASSESSEE HAS PA ID INSTITUTION FEES TO ENABLE HER TO FILE AN APPEAL BEFORE THE CIT(A). UNDER THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE LEARNED CIT(A) WAS JUSTIFIED IN DISMISSING THE APPEAL AS UNADMITTED FOR WANT OF FOLLOWING THE PROCEDURES PRESCRIBED UNDER SECTION 2 4 9 OF THE ACT. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH JUNE, 2015. SD/ - SD/ - ( SANJAY ARORA ) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 26 TH JUNE, 2015 ITA NO. 3075/MUM/2013 SMT. INA JAYESH MEHTA 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 35 , MUMBAI 4. THE CIT 25 , MUMBAI CITY 5. THE DR, I BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.