SHREEDHAR M SHETTY, MUMBAI V. ACIT 12(3),

ITA 4418/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2614 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 24-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J SARAVANAN
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BE NCH, MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, JUDICIAL MEMBER, / I .TA NO.4418/MUM/2014 ( / ASSESSMENT YEAR: 2009-10 SHRI SHREEDHAR M. SHETTY, 71B, MITTAL TOWER, MUMBAI-400 021 / VS. THE ACIT - 12(3), MUMBAI ./ ./ PAN/GIR NO. AKXPS 3214K ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI SATISH MODY / RESPONDENT BY: SHRI J. SARAVANAN / DATE OF HEARING :04.07.2016 ! / DATE OF PRONOUNCEMENT :13 .07.2016 / O R D E R PER C.N. PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE LD. CIT(A)-23, MUMBAI DATED 20.3.2014 PERTAINING TO AS SESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDE R: 1. THE LD. CIT(A) HAS CONFIRMED THE ADHOC ADDITIO N @10% OUT OF TOTAL PURCHASES FROM SUSPICIOUS HAWALA PURCH ASES OF RS. 9,33,57,092/- ITA NO. 4418/M/2014 2 2. THE LD. CIT(A) NOT CONSIDERED THE FACTS THAT DE PARTMENT HAS CONSIDERED THE PEAK AMOUNT FOR ADDITION IN ASSE SSEES CASE FOR A.Y. 2010-11. 3. THE LD. CIT(A) HAS NOT CONSIDERED THE FACTS THA T HIGHEST PEAK OF HAWALA PURCHASES WAS RS. 29,37,311/- FOR TH E CONCERNED YEAR. 4. THE LD. CIT(A) HAS NOT CONSIDERED THE FACTS TH AT WITHOUT PURCHASES, HOW SALES CAN BE EFFECTED? 5. THE LD. CIT(A) HAS NOT CONSIDERED THE FACTS TH AT THE ASSESSEE IS RESELLERS NOT A MANUFACTURERS. THE ASS ESSEE HAS PROVED THAT ENTIRE SALES IS EXPORT. ENTIRE EXPORT SALES WAS CONFIRMED BY VARIOUS GOVERNMENT AUTHORITIES. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT TH E CO-ORDINATE BENCH OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2008- 09 RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A D IRECTION TO EXAMINE THE CLAIM OF THE ASSESSEE AFRESH AS THE ASSESSEE CO NTENDED THAT HE HAS MAINTAINED CERTAIN RECORDS WHICH SHOWS THAT THE PUR CHASE WAS GENUINE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO SERIO US OBJECTION IN REMITTING THE ISSUE TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 5. WE HAVE PERUSED THE ORDER OF THE TRIBUNAL IN A SSESSEES OWN CASE FOR ASSESSMENT YEAR 2008-09 IN ITA NO. 1164/M/ 2012 DATED 21.3.2016 AND FIND THAT THE ADDITION/DISALLOWANCE O N ACCOUNT OF PURCHASES TREATED AS NOT GENUINE HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THE SAME AFRESH OBS ERVING AS UNDER: NEXT GROUND RELATES TO DISALLOWANCE OF PURCHASE BY HOLDING THAT THE SAME AS NON-GENUINE IN NATURE. LEA RNED AR SUBMITTED THAT THE ASSESSING OFFICER HAS TAKEN CERT AIN DETAILS ITA NO. 4418/M/2014 3 FROM SALES TAX DEPARTMENT AND FOUND THAT SOME OF TH E PARTIES, FROM WHOM THE ASSESSEE HAD PURCHASED GOODS, HAVE BE EN ALLEGED TO BE ISSUING BOGUS BILLS. LEARNED AR SUBMI TTED THAT THAT THE ASSESSING OFFICER HAS ACCORDINGLY DISALLOWED TH E PURCHASES WITHOUT CONSIDERING VARIOUS MATERIALS AVAILABLE WIT H THE ASSESSEE TO PROVE THE GENUINENESS OF THE PURCHASES. LEARNED AR FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS TA KEN A DIFFERENT VIEW IN A.Y. 2010-11 AND ACCORDINGLY ADDED PEAK AMO UNT OF PAYMENTS MADE TOWARDS PURCHASES INSTEAD OF ADDING E NTIRE AMOUNT OF PURCHASES. ACCORDINGLY, LEARNED AR SUBMI TTED THAT THE VIEW TAKEN BY THE ASSESSING OFFICER IN A.Y. 2010-11 MAY ALSO BE APPLIED TO THE YEAR UNDER CONSIDERATION ALSO. 6. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER MIGHT HAVE TAKEN DIFFERENT VIEW IN A.Y. 2010-11 CONSIDERING TH E FACTS PREVAILING IN THAT YEAR AND HENCE SAID METHODOLOGY CANNOT BE APPLIED BLINDLY TO THE YEAR UNDER CONSIDERATION. 7. HAVING HEARD RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE E ND OF THE ASSESSING OFFICER FOR THE FOLLOWING REASONS:- A) THE ASSESSEE CLAIMED THAT HE HAS MAINTAINED CERTAIN RECORDS WHICH WOULD SHOW THAT THE PURCHASES WERE GENUINE AN D THE SAID RECORDS HAVE BEEN EXAMINED BY THE ASSESSING OF FICER. B) THE ASSESSING OFFICER HAS TAKEN DIFFERENT VIEW OF T HE MATTER IN A.Y. 2010-11 AND ACCORDING TO THE ASSESSEE FACTS AR E IDENTICAL BETWEEN THAT YEAR AND THE YEAR UNDER CONSIDERATION. ACCORDINGLY, WE SET ASIDE THE ORDER OF LEARNED CIT( A) ON THIS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE SAME AFRE SH AFTER CONSIDERING THE EXPLANATION AND INFORMATION THAT MA Y BE FURNISHED BY THE ASSESSEE BEFORE HIM. THE ASSESSING OFFICER MAY ALSO TAKE INTO CONSIDERATION THE ASSESSMENT ORDER P ASSED BY HIM FOR A.Y. 2010-11 IN THIS REGARD. 6. THE REVENUE COULD NOT POINT OUT ANY CHANGE IN FA CTS DURING THIS ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2009-10 WHICH IS UNDER APPEAL BEFORE US. THEREFORE SINCE THERE IS NO CHANGE IN FA CTS AND CIRCUMSTANCES RESPECTFULLY FOLLOWING THE SAID ORDER , WE RESTORE THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WIT H A DIRECTION TO ITA NO. 4418/M/2014 4 EXAMINE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTE R PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JULY, 2016. SD/- SD/- (RAJENDRA) (C.N. PRASAD ) ' / ACCOUNTANT MEMBER $ %' /JUDICIAL MEMBER MUMBAI; (' DATED 13 TH JULY, 2016 . % . ./ RJ , SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+ ,%%-. , -.! , / DR, ITAT, MUMBAI 6. , /01 / GUARD FILE. / BY ORDER, *% //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI