SHRI PARESH H GUDHAKA, MUMBAI V. ITO WARD 1(3), KALYAN

ITA 4269/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1745 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 20-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: V IRAG H SHAH
• Keywords: Opportunity of being heard; Accommodation entries
• Section: 133(6)

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) I.T.A. NO. 4269 /MUM/ 201 8 (ASSESSMENT YEAR 20 13 - 14 ) SHRI PARESH H. GUDHAKA A - WING 501, PADMAVATI NAGAR, M.P.CHOWK MULUND WEST MUMBAI - 400 080. V S . ITO WARD 1(3) 1 ST F LOOR, MOHAN PLAZA WAYALE NAGAR KHADAK PADA KALYAN(W) - 421 301. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI VIRAG H. SHAH DEPARTMENT BY SHRI CHAITANYA ANJARIA DATE OF HEARING 11.6 . 201 9 DATE OF PRONOUNCEMENT 12 . 6 . 201 9 O R D E R THIS APP EAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 6.3.2018 AND PERTAINS TO A.Y. 2013 - 14. THE ISSUE RAISED IS THAT LEARNED CIT(A) ERRED IN CONFIRMING THE ASSESSING OFFICERS ORDER MAKING ADDITION OF RS. 26,65,396/ - . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS NOTED THAT INFORMATION HAS BEEN RECEIVED THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODATION ENTRY FOR LOSS IN COMMODITIES THROUGH BROKER M/S. HRIM COMTRADE. THE ASSESSING OFFICER ISS UED NOTICE U/S. 133(6) TO M/S. HRIM COMTRADE. M/S. HRIM COMTRADE INFORMED THE ASSESSING OFFICER THAT THE ASSESSEE IS NOT A CLIENT AND NO TRANSACTION HAS BEEN ENTERED. H OWEVER , THE ASSESSING OFFICER TREATED RS. 26,65,396/ - AS UNDISCLOSED INCOME OF THE ASSES SEE. 3. BEFORE LEARNED CIT(A), THE ASSESSEE, INTER ALIA, SUBMITTED THAT THE ASSESSEE HAS NOT DONE ANY TRANSACTION THROUGH M/S. HRIM COMTRADE AND THAT IT HAS NOT TAKEN ANY SUCH ENTRY. HOWEVER, EARLIER LEARNED COUNSEL OF THE ASSESSEE HAS AGREED TO THE ADDI TION. TAKING THIS INTO ACCOUNT, LEARNED CIT(A) SHRI PARES H H. GUDHAKA 2 CONFORMED THE ADDITION. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 4. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORD. LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE HAS NOT DONE AN Y TRANSACTION THROUGH THE SAID BROKER. HE SUBMITTED THAT IN THE ACCOUNTS OF THE ASSESSEE THERE IS NO SUCH BOGUS LOSS ACCOUNTED FOR. HENCE, HE SUBMITTED THAT WITHOUT EXAMINING THE FACTS, THIS ADDITION HAS BEEN MADE. HENCE, LEARNED COUNSEL SUBMITTED THAT MER E CON C ESSION OF EARLIER COUNSEL OF THE ASSESSEE , CANNOT BE TAKEN AS BAR ON THE ASSESSEE TO RAISE FACTUAL ASPECT WHICH HAS NEVER BEEN EXAMINED BY THE ASSESSING OFFICER. 5. UPON CAREFUL CONSIDERATION, I AM OF THE OPINION THAT IT IS THE ASSESSEES CLAIM THA T ASSESSEE HAS NOT TAKEN ANY SUCH BOGUS ACCOMMODATION ENTRIES FOR LOSS. THE ASSESSING OFFICER HAS ONLY REFERRED TO THE RECEIPT OF INFORMATION AND HAS NOT GIVEN ANY FINDINGS AS TO WHETHER ACTUALLY THERE IS ANY SUCH LOSS BOOKED BY THE ASSESSEE OR NOT. IN THE SE CIRCUMSTANCES, IN MY CONSIDERED OPINION INTEREST OF JUSTICE WILL BE SERVED IF THE ISSUE IS REMITTED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE AS TO WHETHER THERE IS ANY SUCH ENTRY OF BOGUS LOSS IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND THEREAFTER HE SHALL DECIDE THE ISSUE AS PER LAW AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD. BOTH THE COUNSEL FAIRLY AGREED TO THE ABOVE PROPOSITION. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 12 . 6 . 201 9 . SD/ - (SH A MIM YAHYA ) ACCOUNTANT MEMBER MUMBAI ; DATED : 12 / 6 / 20 1 9 COPY OF THE OR DER FORWARDED TO : 1. THE APPELLANT SHRI PARES H H. GUDHAKA 3 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI