PRASHANT KANTILA LATHIA, MUMBAI V. ITO 27(1)(1), MUMBAI

ITA 428/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0064 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 19-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.428/MUM/2017 ASSESSMENT YEAR: 2009-10 SHRI PRASHANT KANTILAL LATHIA, 156, D/6, KASHMIR KUNJ, ABOVE UNION BANK OF INDIA, GARODIA NAGAR, GHATKOPAR (E), MUMBAI-400077 / VS. INCOME TAX OFFICER-27(1)(1), MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO.AARPL0145J ITA NO.429/MUM/2017 ASSESSMENT YEAR: 2009-10 SMT. DEEPA PRASHANT LATHIA, 156, D/6, KASHMIR KUNJ, ABOVE UNION BANK OF INDIA, GARODIA NAGAR, GHATKOPAR (E), MUMBAI-400077 / VS. INCOME TAX OFFICER-27(1)(1), MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO.ABWPL9445 ITA NOS.428 /MUM/2017 PRASHANT KANTILAL LATHIA ITA NO. 429/MUM/2017 DEEPA PRASHANT LATHIA 2 !' # / ASSESSEE BY SHRI DEVENDRA JAIN $ / REVENUE BY SHRI RAJAT MITTAL -DR % $& ' # ( / DATE OF HEARING : 22/08/2017 ' # ( / DATE OF PRONOUNCEMENT 22/08/2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THESE TWO APPEALS ARE BY DIFFERENT ASSESSEES AGAINS T THE IMPUGNED ORDERS BOTH DATED 11/11/2016 FOR ASSESSMENT YEAR 2009-10 OF THE FIRST APPELLATE AUTH ORITY, MUMBAI. 2. DURING HEARING, SHRI DEVENDRA JAIN, LD. COUNSEL FOR THE ASSESSEE, ADVANCED ARGUMENTS, WHICH IS IDEN TICAL TO THE GROUND RAISED BY SUBMITTING THAT AN EX-PARTE OR DER HAS BEEN PASSED BY THE FIRST APPELLATE AUTHORITY, IGNOR ING THE FACTUAL MATRIX. IT WAS SUBMITTED THAT THE INTEREST OF JUSTICE AND CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE, O NE MORE OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE. ON THE OTHER HAND, SHRI RAJAT MITTAL, LD. DR, CONTENDED THAT THE ITA NOS.428 /MUM/2017 PRASHANT KANTILAL LATHIA ITA NO. 429/MUM/2017 DEEPA PRASHANT LATHIA 3 ASSESSEE WAS PROVIDED OPPORTUNITY, WHICH WAS NOT AV AILED BY THE ASSESSEE. THE IMPUGNED ORDER WAS DEFENDED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , ITA NO.428/MUM/2017 IS CONCERNED, THE ASSESSEE IS ENGAG ED IN THE BUSINESS OF CIVIL CONSTRUCTION, DECLARED INC OME OF RS.41,32,938/-. THE LD. ASSESSING OFFICER ISSUED NO TICE U/S 147/148 OF THE ACT TO WHICH THE ASSESSEE CONTES TED THE REOPENING. THE ASSESSEE MADE BOGUS PURCHASES FROM VARIOUS PARTIES INCLUDING V.M. UDYOG. THE PARTIES F ROM WHOM PURCHASES WERE MADE FOUND TO BE BOGUS AND AS P ER THE REVENUE, ONLY BOGUS BILLS WERE ISSUED WITHOUT A FFECTING THE DELIVERY OF GOODS. IDENTICAL IS THE SITUATION I N THE CASE OF SMT. DEEPA PRASHANT LATHIA. THE EVIDENCE ON RE CORD CLEARLY SHOWS THAT NEITHER FROM THE ASSESSEE NOR TH E LD. ASSESSING OFFICER WERE PRESENT BEFORE THE LD. COMMI SSIONER OF INCOME TAX (APPEAL). AS IS EVIDENT FROM PARA-6 O F THE IMPUGNED ORDER, THE ASSESSEE HIMSELF REQUESTED VIDE LETTER DATED 16/04/2015 FOR EARLY DISPOSAL OF THE APPEAL, HOWEVER, ON 06/10/2016, THE ASSESSEE COULD NOT APPE AR. ITA NOS.428 /MUM/2017 PRASHANT KANTILAL LATHIA ITA NO. 429/MUM/2017 DEEPA PRASHANT LATHIA 4 THUS, THE IMPUGNED ORDERS WERE PASSED. CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTANCES NARRATED BE FORE US, WE ARE OF THE VIEW THAT AS PER MANDATE OF ARTICLE 2 65 OF CONSTITUTION OF INDIA ONLY DUE TAXES HAS TO BE LEVIED/COLLECTED. SINCE, NO GRIEVANCE IS CAUSED TO EITHER SIDE, WITHOUT GOING INTO THE MERITS OF THE APPEALS, WE DEEM IT APPROPRIATE TO REMAND BOTH THESE APPEALS TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR FRE SH ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSEE B E GIVEN OPPORTUNITY OF BEING HEARD. SINCE, THE ASSESSEE COU LD NOT APPEAR BEFORE THE FIRST APPELLATE AUTHORITY, FOR TH E REASONS KNOWN TO THE ASSESSEE ITSELF, ON THE APPOINTED DATE , BOTH THE ASSESSEES ARE DIRECTED TO APPEAR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) ON A MUTUALLY P RE- DECIDED DATE. THE ASSESSEES ARE DIRECTED TO APPROAC H THE OFFICE OF THE FIRST APPELLATE AUTHORITY WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER. THE LD. COMMISSION ER OF INCOME TAX (APPEAL) IS AT LIBERTY TO DISPOSE OF THI S APPEAL ACCORDINGLY EITHER ON THE SAME DAY, IF IT IS CONVEN IENT, OR ITA NOS.428 /MUM/2017 PRASHANT KANTILAL LATHIA ITA NO. 429/MUM/2017 DEEPA PRASHANT LATHIA 5 ON A OTHER CONVENIENT DATE. BOTH THE APPEALS ARE AL LOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING IN THE OPEN COURT ON 22/08/2017. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; - DATED : 22/08/2017 F{X~{T? P.S/. .. , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 201 / THE RESPONDENT. 3. 3 3 % 4# , ( ./ ) / THE CIT, MUMBAI. 4. 3 3 % 4# / CIT(A)- , MUMBAI 5. 6$7 # , 3 ./( . , % & / DR, ITAT, MUMBAI 6. 8! 9& / GUARD FILE. / BY ORDER, 26/# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI