VIPUL GADA (HUF), MUMBAI V. ITO 17(3)(5), MUMBAI

ITA 3864/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3387 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 01-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Assessee Lawyers: DIVYESH FOTARIA
• Keywords: Opportunity of being heard
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER AND ITA NO.3864/MUM/2018 ASSESSMENT YEAR-2012-13 VIPUL GADA (HUF), VIPUL GADA, 9 PATEL CHAMBERS, ROOM NO.2, 1 ST FLOOR, GUNBOW STREET, OPP. FIRE BRIGADE, FORT, MUMBAI-400001 / VS. ITO - 17(3)(5), AAYAKAR BHAVAN, CHURCHGATE, MUMBAI PAN NO. AACHV6276P ( / ASSESSEE) ( / REVENUE) / ASSESSEE BY SHRI DIVYESH FOTARIA / REVENUE BY SHRI CHAITNYA ANJARIA / DATE OF HEARING : 23/04/2019 / DATE OF ORDER: 25/04/2019 / O R D E R PER SHAMIM YAHYA (ACCOUNTANT MEMBER) THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST ORDER'S OF LEARNED CIT(A)-28, DATED 04/04/2018 FOR ASSESSMENT YEAR 2012-13. THE GROUNDS OF APPEAL READ AS UNDER:- THE LD. CIT(A) HAS ERRED IN UPHOLDING THE FOLLOWIN G ADDITION OF RS.16,09,000/- BEING 30% OF LABOUR CHARGES OF RS.44,08,330/- AND WAGES OF RS.9,55,500/- MADE BY T HE LEARNED AO. ITA NO.3864/MUM/2018, VIPUL GADA (HUF) 2 2. THE BRIEF FACTS OF THE CASE ARE AS UNDER:- THE ASSESSING OFFICER IN THIS CASE OBSERVED THAT ASSESSEE IS AN HUF AND PROPERTIES OF M/S VIBALI CLOTHING, ENGAGED IN THE BUSINESS OF WHOLESALE DEAL ER OF READYMADE GARMENTS. DURING THE YEAR, THE ASSESSEE HUF HAS SHOWN TOTAL TURNOVER OF RS.2,01,49,934/- AN D DECLARED GROSS PROFIT AT RS.41,31,173/- I.E. 20.5% AND NET PROFIT AT RS.5,55,918/- I.E. 2.76% AS AGAINST D URING IMMEDIATELY PRECEDING YEAR, THE TOTAL TURNOVER AT RS.1,44,36,976/- AND GROSS PROFIT AT RS.27,67,409/- I.E. 19.27% AND NET PROFIT DECLARED AT RS.4,41,570/- I.E . 3.06% WHICH SEEMS THAT THERE HAS BEEN SLIGHT DECREA SE IN THE NET PROFIT FOR ASSESSMENT YEAR 2012-13. 3. THEREAFTER ASSESSING OFFICER REFERRED THAT TO VE RIFY THE GENUINENESS AND CREDITWORTHINESS OF LABOUR CHARGES & WAGES ISSUED THE NOTICE UNDER SECTION 133(6) OF THE ACT TO BE COMPLIED WITH IN 6 DAYS. PURSUANT TO NON-RECEIPT OF REPLY, HE PROCEEDED TO MAKE AD-HOC DISALLOWANCE OF 30% OF THE SE EXPENDITURE. 4. AGAINST ABOVE ORDER ASSESSEE APPEALED BEFORE THE LEARNED CIT(A). LEARNED CIT(A) REPRODUCED THE ORDER OF ASSESSING OFFICER. THEREAFTER HE OBSERVED THAT CASE WAS FIXED AND THERE WAS NO COMPLIANCE BY THE ASSESSEE. THEREA FTER, HE ITA NO.3864/MUM/2018, VIPUL GADA (HUF) 3 OBSERVED THAT ISSUE IS DECIDED ON MERIT. HE REFERRE D TO SEVERAL CASE LAWS AND UPHELD THE ORDER OF ASSESSING OFFICER . 5. AGAINST ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 6. LEARNED COUNSEL OF THE ASSESSEE PLEADED THAT ALL THE NECESSARY DETAILS, CONFIRMATIONS AND SUBMISSIONS WE RE MADE BEFORE THE LEARNED CIT(A). HE SUBMITTED THAT LEARNE D CIT(A) HAS SUMMARILY DISMISSED THE APPEAL WITHOUT CONSIDER ING THE SUBMISSIONS OF THE ASSESSEE. 7. UP ON CAREFUL CONSIDERATION WE FIND THAT ASSESSI NG OFFICER IN THIS CASE HAS HIMSELF OBSERVED THAT ASSE SSEE'S GROSS PROFIT WAS COMPARABLE WITH EARLIER YEAR. THEREAFTER ASSESSING OFFICER PROCEEDED TO VERIFY THE EXPENSES BY ISSUING A NOTICE UNDER SECTION 133(6) OF THE ACT AND GAVE 6 DAYS FOR COMPLIANCE. THEREAFTER ASSESSING OFFICER MADE AD-H OC DISALLOWANCE OF 30%. 8. UP ON ASSESSEE'S APPEAL, LEARNED CIT(A) HAS NOT CONSIDERED THE SUBMISSIONS MADE BEFORE HIM AND HAS SUMMARILY DISMISSED THE ASSESSEE'S APPEAL. 9. UP ON CAREFUL CONSIDERATION, IN OUR CONSIDERED O PINION THE INTEREST OF JUSTICE DEMANDS THAT THIS MATTER BE REMITTED TO THE FILE OF LEARNED CIT(A). ACCORDINGLY, WE REMIT T HE ISSUE THE ITA NO.3864/MUM/2018, VIPUL GADA (HUF) 4 FILE OF LEARNED CIT(A). LEARNED CIT(A) IS DIRECTED TO CONSIDER THE SUBMISSIONS OF THE ASSESSEE AND PASS A SPEAKING ORDER. NEEDLESS TO ADD THE ASSESSEE SHOULD BE GRANTED ADEQ UATE OPPORTUNITY OF BEING HEARD 10. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSE E STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/04/2019. SD/- S D/- (RAVISH SOOD) (SHAMIM YAHYA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 25/04/2019 F{X~{T? P.S/. .. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. !'# / THE RESPONDENT. 3. $# $# % ( ) / THE CIT, MUMBAI. 4. $# $# % / CIT(A)- , MUMBAI, 5. ( )*# !+ , $# # +- , / DR, ITAT, MUMBAI 6. *. / / GUARD FILE. / BY ORDER, '#( ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) $%&', / ITAT, MUMBAI