GEMINI ENGI FAB LIMITED, MUMBAI V. DY.CIT-9(3)(2), MUMBAI

ITA 4284/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1735 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI WITH RUTUJA PAWAR
• Keywords: Bogus purchase; Unexplained cash credit; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA, JUDICIAL MEMBER AND SHRI PAWAN SINGH, ACCOUNTANT MEMBER ITA NO. 4284/MUM/2017 (ASSESSMENT YEAR 20 12-13 ) M/S GEMINI ENGI FAB LTD. 501, PALM SPRING, LINK ROAD, MALAD(W), MUMBAI-400064. PAN: AACG7948N VS. DCIT- 9(3)(2) ROOM NO. 418, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : SHRI S.C. TIWARI WITH RUTUJA PAWAR (DR) RESPONDENT BY : SHRI ABHIJIT PATANKAR WITH R. KAVITHA (DR) DATE OF HEARING : 30.08.2018 DATE OF PRONOUNCEMEN T : 30.08.2018 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME -TAX ACT IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-16, MUMBAI DATED 01 .03.2017 FOR ASSESSMENT YEAR 2012-13. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E APPELLANT'S CASE AND IN LAW, LEARNED CIT(A) HAS ERRED IN HOLDING THAT NONE APPEA RED BEFORE HIM ON BEHALF OF THE APPELLANT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E APPELLANT'S CASE AND IN LAW, LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITION ON ACCOUNT OF THE ALLEGED BOGUS PURCHASES MADE BY THE ASSESSING OFFICER TO TH E EXTENT OF 12.5 %. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E APPELLANT'S CASE AND IN LAW, LEARNED CIT(A) HAS ERRED IN UPHOLDING UNSECURED LOA NS AS UNEXPLAINED CASH CREDIT AMOUNTING TO RS. 1,25,85,150/- MADE BY THE A SSESSING OFFICER. 4. THE LEARNED COMMISSIONER'S ORDER BEING CONTRARY TO LAW, EVIDENCE AND FACTS OF THE CASE SHOULD BE SET ASIDE, AMENDED OR MODIFIE D IN THE LIGHT OF THE GROUNDS DEDUCED ABOVE. ITA NO. 4284 MUM 2017-M/S GEMINI ENGI FAB LTD. 2 5. THE GROUNDS OF APPEAL ABOVE ARE INDEPENDENT OF A ND WITHOUT PREJUDICE TO EACH OTHER. 6. THE APPELLANT CRAVES LEAVE TO RESERVE TO HIMSELF , THE RIGHT TO ADD TO, ALTER OR AMEND ANY OF THE AFORESAID GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING AND TO PRODUCE SUCH FURTHER EVIDENCE, DOCUMENTS AND PAPERS AS MAY BE CONSIDERED NECESSARY. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-COMPA NY IS ENGAGED IN THE MANUFACTURING OF FABRICATION MACHINERY, FILED ITS R ETURN OF INCOME FOR ASSESSMENT YEAR 2012-13 ON 27.09.2012 DECLARING TOT AL INCOME AT RS. 22,44,030/-. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY. THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) ON 23.03.2015. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R BESIDES THE OTHER ADDITION/ DISALLOWANCES MADE THE ADDITION ON ACCOU NT OF BOGUS PURCHASES OF RS. 14,75,155/- AND TREATED THE UNSECURED LOAN O F RS. 1,25,85,150/- AS UNEXPLAINED CASH CREDIT. ON APPEAL BEFORE THE LD. C IT(A), THE ADDITION OF BOGUS PURCHASES WAS RESTRICTED TO 12.5%, HOWEVER, T HE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT WAS CONFIRMED. THUS, FUR THER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRE SENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE SUBMITS THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER WITHO UT GIVING FAIR AND PROPER OPPORTUNITY. THE LD. CIT(A) PASSED THE ORDER EX-PARTE WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND THE DOCUMEN TARY EVIDENCES ITA NO. 4284 MUM 2017-M/S GEMINI ENGI FAB LTD. 3 FURNISHED BY THE ASSESSEE. THE LD. AR OF THE ASSES SEE FURTHER SUBMITS THAT THE ASSESSEE FILED COPY OF PAPER BOOK CONTAINING LE DGER AND PURCHASE REGISTER OF ASSESSEE, CONFIRMATION OF ACCOUNT FROM M/S GOODLUCK METAL CORPORATION, COPY OF TAX INVOICES, BANK STATEMENT. HOWEVER, THE LD. CIT(A) HAS NOT CONSIDERED THOSE SUBMISSION. THE LD. AR FURTHER SUBMIT THAT THE ASSESSEE FILED WRITTEN SUBMISSION BEFORE T HE LD. CIT(A) ON 20.10.2016, HOWEVER, THE SAME WAS NOT CONSIDERED WH ILE PASSING THE IMPUGNED ORDER. THE LD AR FOR THE ASSESSEE FURTHER SUBMITS THAT HE HAS ALSO FILED APPLICATION FOR ADDITIONAL EVIDENCE ON 0 7.09.2016 BEFORE THE LD. CIT(A). THE LD. CIT(A) FAILED TO CONSIDER THE DOCUM ENTARY EVIDENCE, APPLICATION FOR ADDITIONAL EVIDENCE AND THE WRITTEN SUBMISSION AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE MATTER MAY BE RESTORED TO THE FILE OF LD. CIT(A) FOR CONSIDERING THE DOCUM ENTARY EVIDENCES, ADDITIONAL EVIDENCES AND THE WRITTEN SUBMISSION AND PASSED THE ORDER AFRESH. 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUBMI TS THAT THE ASSESSEE WAS GIVEN AMPLE OPPORTUNITY. THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A) AND TO SUBSTANTIATE ITS CLAIM WITH REGARD TO THE PURCHASES AND THE UNEXPLAINED CASH CREDIT. THE LD. DR PRAYED FOR DISM ISSAL OF THE APPEAL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDER OF LD. CIT(A). WE HAVE NOTED THAT THE ASSESSEE FURNISHED THE PAPER BOOK CONTAINING COPY OF LEDGER ACCOUNT AN D PURCHASE REGISTER OF ITA NO. 4284 MUM 2017-M/S GEMINI ENGI FAB LTD. 4 GEMINI ENGI-FAB LTD., COPY OF CONFIRMATION OF ACCO UNTS FROM M/S. GOODLUCK METAL CORPORATION DATED 01.04.2012, COPIE S OF TAX INVOICES, CENTRAL EXCISE INVOICES, WEIGH-BRIDGE, DELIVERY CHA LLANS AND ONE TRANSPORTATION BILL AND COPY OF BANK STATEMENT FROM THE BHARAT CO- OPERATIVE BANK LTD. FROM 01.04.2011 TO 31.03.2012, COPY OF LETTER ISSUED BY KESHARIYA DIAM PVT. LTD. AND COPY OF BANK STATE MENT FROM AXIS BANK LTD.) ON 12.08.2016 WHICH IS DULY ACKNOWLEDGE BY THE OFFI CE OF LD. CIT(A). WE HAVE ALSO NOTED THAT THE ASSESSEE FILED AN APPLICATION FOR ADDITIONAL EVIDENCE, WHICH IS DULY ACKNOWLEDGED BY THE OFFICE OF LD. CIT(A) ON 07.09.2016. WE HAVE FURTHER NOTED THAT TH E ASSESSEE FILED ITS WRITTEN SUBMISSION DATED 13.10.2016, DULY ACKNOWLED GED VIDE ACKNOWLEDGEMENT FROM THE OFFICE OF LD. CIT(A) DATED 20.10.2016. COPY OF ALL THESE DOCUMENTS REFERRED ABOVE ARE FILE BEFORE US BY LD AR FOR THE ASSESSEE WITH THE CERTIFICATE THAT THESE DOCUMENTS WERE PLACED BEFORE LD CIT(A). WE HAVE NOTED THAT THE LD. CIT(A) HAS NOT R EFERRED IN ITS ORDER ABOUT THE WRITTEN SUBMISSION, DOCUMENTARY EVIDENCE FURNISHED BY ASSESSEE. 6. FROM THE CONTENTS OF THE IMPUGNED ORDER, WE HAVE AL SO NOTED THAT THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) ON 14.0 5.2015. THE FIRST DATE OF HEARING WAS FIXED BY LD. CIT(A) ON 26.05.2016. ON 2 6.05.2016 THE ASSESSEE SEEKS ADJOURNMENT AND THE CASE WAS ADJOURN ED FOR 09.06.2016. ON 09.06.2016 NONE-APPEARED ON BEHALF OF ASSESSEE A ND THE CASE WAS RE- ITA NO. 4284 MUM 2017-M/S GEMINI ENGI FAB LTD. 5 FIXED FOR HEARING ON 24.06.2016. ON 24.06.2016 NONE -APPEARED ON BEHALF OF ASSESSEE AND THE CASE WAS FIXED ON 01.07.2016 AN D CASE WAS ADJOURNED FROM TIME TO TIME ON 05.08.2016, 12.08.2016, 19.08. 2016 AND FINALLY FOR 27.02.2017. WE HAVE NOTED THAT THE LD. CIT(A) HAS N OT RECORDED IN THE ORDER THAT AFTER AVAILING DATE ON 26.06.2016, IF A NY FRESH NOTICE WAS ISSUED AFTER 09.06.2016 OR NOT TO THE ASSESSING OFFICER AB OUT FIXING THE DATE OF HEARING. THE COPY OF PAPER BOOK BEFORE THE ASSESSIN G OFFICER REVEALS THAT THE ASSESSEE FILED PAPER BOOK CONTAINING LEDGER ACC OUNT, CONFIRMATION OF GOODLUCK METAL, TAX INVOICES AND VARIOUS BANK STATE MENTS ON 12.08.2016. THE ASSESSEE ALSO FILED APPLICATION FOR ADDITIONAL EVIDENCE ON 07.09.2016 AND WRITTEN SUBMISSION ON 20.10.2016. HOWEVER, NONE OF THE DOCUMENTS, APPLICATION FOR ADDITIONAL EVIDENCE AND WRITTEN SUB MISSION REFERRED AND DISCUSSED BY LD. CIT(A) WHILE PASSING THE IMPUGNED ORDER. FACTS REMAINS THAT THE IMPUGNED ORDER WAS PASSED WITHOUT GIVING P ERSONAL HEARING TO THE ASSESSEE. 7. CONSIDERING THE PECULIARITY OF THE FACT, WE FEEL IT APPROPRIATE TO RESTORE THE APPEAL TO THE FILE OF LD. CIT(A) TO PASS THE ORDER AFRESH AFTER CONSIDERING THE VARIOUS DOCUMENTARY EVIDENCES FURNISHED BY ASSE SSEE IN ACCORDANCE WITH LAW. THE LD. AR OF THE ASSESSEE IS ALSO DIRECT ED TO FULLY CO-OPERATE WITH THE LD. CIT(A) AND TO FURNISH FOR NECESSARY DO CUMENT/EVIDENCES AND NOT TO SEEK ADJOURNMENT WITHOUT ANY VALID REASONS. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ITA NO. 4284 MUM 2017-M/S GEMINI ENGI FAB LTD. 6 ORDER PRONOUNCED IN THE OPEN COURT ON 30/08/2018. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 30.08.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI