LEKHRAJ J. JAIN, MUMBAI V. ITO 19(2)(1), MUMBAI

ITA 3435/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4311 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ALPESH VORA
• Keywords: Opportunity of being heard
• Section: 143(1); 147; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SM C BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 3435 / MUM . /2018 ( ASSESSMENT YEAR : 20 09 10 ) LEKHRAJ J. JAIN 45/12, RAJEKOTWALA BUILDING 2 ND FLOOR, 1 ST CARPENTER STREET MUMBAI 400 004 PAN AAEPJ3881C . APPELLANT V/S INCOME TAX OFFICER WARD 1 9 (2)( 1 ), MUMBAI . RESPONDENT ASSESSEE BY : SHRI ALPESH VORA REVENUE BY : SHRI VIVEK ANAND OJHA DATE OF HEARING 06 . 03 .201 9 DATE OF ORDER 13.03.2019 O R D E R A FORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 9 TH MARCH 2018 , PASSED BY THE LEARNED COMMISSIONER (APPEALS) 3 0 , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2009 10 . 2 . THE ISSUE IN DISPUTE IN THE PRESENT APPEAL IS CONFINED TO THE A DDITION OF ` 4 6,56,421 , ON ACCOUNT OF NON GENUINE PURCHASES. 3 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 29 TH 2 LEKHRAJ J. JAIN SEPTEMBER 2009, DECLARING TOTAL INCOME OF ` 2,50,318. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PRO CESSED UNDER SECTION 143(1) OF THE INCOME - TAX ACT, 1961 (FOR SHORT 'THE ACT' ). SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE OFFICE OF THE DGIT (INV.), MUMBAI, AND THE SALES TAX DEP ARTMENT, GOVERNMENT OF MAHARASHTRA, THAT PURCHASES WORTH ` 46,56,421, CLAIMED TO HAVE BEEN MADE BY THE ASSESSEE FROM FOUR PARTIES ARE NON GENUINE, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. AS OBSERVED BY THE ASSESSING OFF ICER, SINCE THE ASSESSEE NEITHER RESPONDED TO THE NOTICE ISSUED NOR APPEARED BEFORE HIM TO FURNISH EVIDENCES AND EXPLAIN THE GENUINENESS OF PURCHASES, THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 144 OF THE ACT TO THE BEST OF HI S JUDGMENT. HAVING DONE SO, THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNT UNDER SECTION 145(3) OF THE ACT AND TREATED THE ENTIRE PURCHASES OF ` 46,56,421, AS NON GENUINE AND ADDED BACK TO THE INCOME OF THE ASSESSEE. THOUGH, THE ASSESSEE CHALLENGED TH E AFORESAID ADDITION BEFORE LEARNED COMMISSIONER (APPEALS), HOWEVER, HE ALSO SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. 4 . I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT IS EVIDENT , BOTH THE ASSESSMENT ORDER AS WELL AS THE FIRST APPELLATE ORDER WAS PASSED EX PARTE SINCE THE ASSESSEE DID NOT APPEAR BEFORE THE DEPARTMENTAL AUTHORITIES. FROM THE AFORESAID FACTS, IT IS 3 LEKHRAJ J. JAIN EVIDENT THAT THE ASSESSEES APPROACH WAS VERY CASUAL AND HE DID NOT AVAIL OF OPPORTUNITY OF HEARING GRANTED TO HIM BY THE DEPARTMENTAL AUTHORITIES. HOWEVER, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT GIVEN AN OPPORTUNITY , ASSESSEE WILL APPEAR BEFORE THE ASSESSING OFFICER AND FURNISH ALL EVIDENCES TO JUSTIFY HIS CLAIM THAT PURCHASES ARE GENUINE. CONSI DERIN G THE AFORESAID SUBMISSION OF LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE, I AM INCLINED TO TAKE A LENIENT VIEW AND AFFORD ONE MORE OPPORTUNITY TO THE ASSESSEE TO PROVE HIS CLAIM BEFORE THE ASSESSING OFFICER. ACCORDINGLY, I RESTORE THE ISSUE TO THE A SSESSING OFFICER FOR DE NOVO ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I ALSO DIRECT THE ASSESSEE TO RESPOND TO THE NOTICES TO BE ISSUED BY THE ASSESSING OFFICER AND CO OPERATE IN FINALIZING THE PROCEEDINGS. IT IS ALSO MADE CLEAR , I HAVE NOT EXPRESSED ANY OPINION ON THE MERITS OF THE ISSUE. GROUND IS ALLOWED FOR STATISTICAL PURPOSE. 5 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.03.2019 SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 13.03.2019 4 LEKHRAJ J. JAIN COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI