MARUTI JEWELS PVT LTD., MUMBAI V. ITO 12(3)(3), MUMBAI

ITA 4294/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3481 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-06-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Reopening of assessment; Bogus purchase; Opportunity of being heard; Difference of opinion; Change of opinion; Set aside
• Section: 69C; 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 4294/MUM/2019 ASSESSMENT YEAR: 2010-11 MARUTI JEWELS PVT. LTD., 6 TH FLOOR, 6170, BHARAT DIAMOND, BOURSE, TOWER NO. JE, BKC, BANDRA (E), MUMBAI-400 051. VS. ITO 12(3)(3), ROOM NO. 224, 2 ND FLOOR, AAYAKAR BHAVAN, NEW MARINE LINES, MUMBAI-400 020. PAN NO. AAECM 2549 R APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS. SMITA VERMA, DR DATE OF HEARING : 16/02/2021 DATE OF PRONOUNCEMENT : 02/03/2021 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2010-11. THE APPEAL IS DIRECTED AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS)-20, MUMBAI [IN SHORT CIT(A)] AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 OF THE I NCOME TAX ACT 1961, (THE ACT). THOUGH THE CASE WAS FIXED FOR HEARING ON 15.12.2020 AND 16.02.2021, NEITHER THE ASSESSEE NOR ITS AUTHORIZED REPRESENTAT IVE APPEARED BEFORE THE BENCH ON THE ABOVE DATES. AS THERE IS NON-COMPLIANC E BY THE ASSESSEE, WE ARE ITA NO. 4294/M/2019 MARUTI JEWELS PVT. LTD. 2 PROCEEDING TO DISPOSE OFF THIS APPEAL AFTER EXAMINI NG THE MATERIALS AVAILABLE ON RECORD AND HEARING THE LD. DEPARTMENTAL REPRESENTAT IVE (DR). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CA SE AND IN LAW THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL FILED PROVIDING AN O PPORTUNITY OF BEING HEARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS C ASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE REOPENING OF ASSESSMENT U/S 147BY ISSUE OF NOTICE U/S 148 WHICH IS MERELY DUE TO CHANGE OF OPINION AND TH EREFORE THE REOPENING IS BAD IN LAW. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS C ASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE REOPENING OF ASSESSMENT U/S 147 BY ISSUE OF NOTICE U/S 148 DATED 09.06.2016 WHICH IS BARRED BY LIMITATION IN VIEW OF THE FIRST PROVISO TO SECTION 147 OF INCOME TAX ACT, 1961. 4. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS E ASE AND IN LAW THE LD. CIT(A)ERRED IN CONFIRMING THAT THE APPELLANT HAS EN TERED INTO ACCOMMODATION TRANSACTIONS OF PURCHASES WITH SHRI RAJENDRA JAIN G ROUP. SANJAY CHOUDHARY GROUP AND DHARMICHAND JAIN GROUP WITHOUT ANY MATERI AL EVIDENCE ON RECORD. 5. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS C ASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1,15,895/- B EING ALLEGED NON-GENUINE PURCHASES FROM M/S KANGAN JEWELS PVT. LTD. BY INVOK ING SECTION 69C OF THE INCOME TAX ACT, 1961. AS PER PARA 14 OF THE IMPUGNE D ORDER. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2010-11 ON 30.1 1.2011 DECLARING TOTAL INCOME AT RS.8,74,350/-. THE ASSESSING OFFICER (AO) PASSED AN ORDER U/S 143(3) ON 14.03.2013, ASSESSING THE TOTAL INCOME AT RS.10,75,620/-. SUBSEQUENTLY, THE AO RECEIVED INFORMATION FROM THE DIRECTOR GENERAL OF INCOME TAX (INV), MUMBAI AND DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL ITA NO. 4294/M/2019 MARUTI JEWELS PVT. LTD. 3 CIRCLE-4, SURAT THAT THE ASSESSEE HAD TAKEN ACCOMMO DATION ENTRIES ON PURCHASES. ACCORDINGLY, HE ISSUED NOTICE U/S 148 DA TED 09.06.2016 TO THE ASSESSEE AND PASSED AN ORDER DATED 18.12.2017 U/S 1 43(3) R.W.S. 147 OF THE ACT DETERMINING THE TOTAL INCOME AT RS.11,91,520/-. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE F ILED AN APPEAL BEFORE THE LD. CIT(A). WE FIND THAT VIDE ORDER DATED 29.03.2019, THE LD. CIT(A) PASSED AN EX-PARTE ORDER DISMISSING THE APPEAL. HE HAS MENTIONED THAT THOUGH THE CASE WAS FIXED FOR HEARING ON 14.03.2019, 22.03.2019 AND 28.03.2019, NONE APPEARED FOR THE ASSESSEE. REITERATING THE ORDER OF THE AO, THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 5. BEFORE US, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN THE INSTANT CASE, THE AO HAS MADE AN ADDITION OF RS.1,15,895/- TREATING IT AS ON ACCOUNT OF BOGUS PURCHASES. THERE IS NO MENTION IN THE ORDER OF THE LD. CIT(A) WHETHER THE NOTICES ISSUED BY HIS OFFICE FIX ING THE CASE FOR HEARING ON 14.03.2019, 22.03.2019 AND 28.03.2019 WAS RECEIVED BY THE ASSESSEE OR NOT. A NOTICE INTIMATING THE DATE FIXED FOR HEARING IS TO BE RECEIVED BY THE ASSESSEE. IN VIEW OF THE ABOVE FACTS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIM TO PASS A DE NOVO ORDER, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRE CT THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE LD. CIT(A) O N THE DATE OF HEARING. ITA NO. 4294/M/2019 MARUTI JEWELS PVT. LTD. 4 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/03/2021. SD/- SD/- (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 02/03/2021 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSISTANT REGISTRAR) ITAT, MUMBAI