Shyam Ingots Pvt. Ltd., Silvassa V. The ACIT., Vapi Circle, Vapi

ITA 3719/AHD/2004

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8904 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-02-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 20-12-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA SRDR
• Keywords: Bogus purchase; Unexplained cash credit; Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI A.N.PHAUJA, ACCOUNTANT MEMBER ITA NO.3719/AHD/2004 ASSESSMENT YEAR:2001-02 DATE OF HEARING:18.2.10 DRAFTED:22.2.10 SHYAM INGOTS PVT. LTD. PLOT NO.29,30 & 31, KHADOLI INDUSTRIAL ESTATE, SILVASSA, DADAR & NAGAR HAVELI PAN NO.AADCS4556P V/S. ASSISTANT COMMISSIONER OF INCOME-TAX, VAPI CIRCLE, VAPI (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI TUSHAR P HEMANI, AR RESPONDENT BY:- SHRI C.K. MISHRA, SR-DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-VALSAD IN APPEAL NO. CIT(A)/VL S/338/03-04 DATED 22-09- 2004. THE ASSESSMENT WAS FRAMED BY THE ACIT, VAPI C IRCLE, VAPI U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE ORDER DATED 28-01- 2004 FOR THE ASSESSMENT YEAR 2001-02. 2. THE FIRST ISSUE IN THIS APPEAL OF THE ASSESSEE I S AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE BOGUS PURCHASE AT RS.4,46,438 /-. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FIL ED COPIES OF PURCHASE BILLS OF DAKA MONOLITHICS PVT. LTD., ANAN STEEL, NAGRIK FOIL S LTD. AND SAHYADRI ENTERPRISES AND STATED THAT THESE ARE FRESH EVIDENCE WHICH PROV ES THAT THE PURCHASES ARE NOT ITA NO3719/AHD/2004 A. Y. 2001-02 SHYAM INGOTS PVT. LTD. V. ACIT VAPI CIRCLE PAGE 2 BOGUS. HE STATED THAT THESE EVIDENCES ARE FILED BE FORE THE TRIBUNAL FOR THE FIRST TIME. AT THIS LD. SR-DR WAS REQUIRED TO COMMENT ON THIS A DDITIONAL EVIDENCES AND HE STATED THAT THESE EVIDENCES ARE VITAL TO DECIDE THI S ISSUE AND HENCE, IN CASE THESE ARE ADMITTED, THE ISSUE SHOULD BE SENT BACK TO THE FILE OF ASSESSING OFFICER FOR VERIFICATION OF THESE DOCUMENTS AS THESE DOCUMENTS WERE NEVER EXAMINED BY THE LOWER AUTHORITIES. IN VIEW OF THE ABOVE FACTS, THE ASSESSEE IS DIRECTED TO PRODUCE ALL THE DOCUMENTS BEFORE THE ASSESSING OFFICER SO THAT AO CAN EXAMINE THE SAME AFRESH. THE ASSESSEE ALSO UNDERTOOK NOT TO RAISE AN Y OBJECTION THAT THE MATTER HAS BECOME TOO OLD AND HE CANNOT PRODUCE THE DOCUMENTS OR EVIDENCES TO SUPPORT THE CLAIM OF GENUINENESS OF PURCHASES. IN VIEW OF THE A BOVE AND ADMISSION OF THE ASSESSEE, WE SET ASIDE THIS ISSUE TO THE FILE OF AO FOR EXAMINATION OF THIS ISSUE AFRESH IN THE LIGHT OF FRESH EVIDENCE. ACCORDINGLY, THIS ISSUE IS SET ASIDE TO THE FILE OF ASSESSING OFFICER AS INDICATED ABOVE. 4. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AS REGARDS TO THE ADDITION CONFIRMED BY THE CIT(A) ON ACCOUNT OF UNEXPLAINED C ASH CREDIT OF RS.10.90 LAKHS. 5. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT THERE ARE TOTAL 63 CASH CREDITS OF AMOUNTS RANGING BETWEEN RS.15,000/- TO R S.19,000/-. HE STATED THAT THE ASSESSING OFFICER HAS EXAMINED ONLY 17 CASH CREDITO RS, WHO HAVE ADMITTED TO HAVE GIVEN THESE CASH LOANS TO THE ASSESSEE. ON THE OTHE R HAND, LD. SR-DR OBJECTED TO THE DELETION OF ADDITION. WE FIND FROM THE ORDER OF THE AO AS WELL AS ORDER OF CIT(A) THAT EVEN IN CASES OF 17 CASH CREDITORS EXAMINED BY THE ASSESSING OFFICER, THERE IS NO FINDING THAT WHAT IS QUANTUM OF INCOME OF EACH O F CASH CREDIT PER MONTH. THE AO HAS NOT EXAMINED THE BALANCE CASH CREDITORS. IN VI EW OF THE ABOVE FACTS, WE FEEL THAT THE ISSUE, IN ENTIRETY SHOULD BE EXAMINED AFRE SH AND AO CAN EXAMINE ALL 63 CASH CREDITORS SO AS TO DECIDE THIS ISSUE AFTER PRO VIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THIS ISSU E IS ALSO SET ASIDE TO THE FILE OF ASSESSING OFFICER. 6. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AS REGARDS TO THE ORDER OF CIT(A) IN CONFIRMING THE UNEXPLAINED CASH CREDIT AMOUNTING TO RS.5 LAKHS OF SHYAM NANKANI. ITA NO3719/AHD/2004 A. Y. 2001-02 SHYAM INGOTS PVT. LTD. V. ACIT VAPI CIRCLE PAGE 3 7. AFTER HEARING THE RIVAL CONTENTIONS AND GOING TH ROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT FOR THE FIR ST TIME BEFORE US THE ASSESSEE HAS FILED THE CONFIRMATION LETTER AND THE ACCOUNT STATE MENT OF BANK OF PUNJAB AS WELL AS ACCOUNT STATEMENT, WHERE THIS AMOUNT OF RS.5 LAKHS I.E. CHEQUES OF RS.2.50 LAKHS EACH WERE ADVANCED TO THE ASSESSEE. THESE DOCUMENTS ARE FILED FOR THE FIRST TIME BEFORE US AND TAKING INTO CONSIDERATION AND FURTHER ADMITTING THE SAME, WE SET ASIDE THIS ISSUE TO THE FILE OF ASSESSING OFFICER. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 23/02/2010 SD/- SD/- (A.N.PHAUJA) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 23/02/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-V, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD