ABBAS ABDUL PATEL, MUMBAI V. ITO WD NO,. 24(3)(1), MUMBAI

ITA 4952/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2293 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 26-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Keywords: Bogus purchase; Business expenditure; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) I.T.A. NO.4952/MUM/2014 (ASSESSMENT YEAR: 2009-10) SHRI ABBAS ABDUL PATEL MQ QUARTERS, ROOM NO.1 UNIT.9, AAREY MILK COLONY GOREGAON (E), MUMBAI 400 065 VS ITO, 24(3)(1), MUMBAI PAN : AABCR3179H (APPELLANT) (RESPONDENT) APPELLANT BY SHRI VISHWAS MEHENDALE RESPONDENT BY SHRI PREMANAND J DATE OF HEARING : 26-10-2016 DATE OF PRONOUNCEMENT : 26 -10-2016 O R D E R PER ASHWANI TANEJA, AM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-38, MUMBAI [HE REINAFTER CALLED CIT(A)] DATED 15-04-2014 PASSED AGAINST THE ASSESSM ENT ORDER U/S 143(3) DATED 16-12-2011 FOR A.Y. 2009-10 ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, HON'BLE CIT-A-34, HAS ERRED IN DISALLOWING RS.12,72,9851- O N ACCOUNT OF BOGUS PURCHASES AND RS. 1,25,470/- AS AGRICULTURAL INCOME BY OVERLOOKING THE FACT THAT THE SAME WHERE PROPERLY E XPLAINED ALONG WITH EVIDENCES DURING THE APPELLATE PROCEEDINGS BEF ORE HON. CIT-A. 2 I.T.A. NO.4952/MUM/2014 2. THE ASSESSEE, IN THE COURSE OF APPELLATE PROCEEDING S FILED MODIFIED / ADDITIONAL GROUNDS OF APPEAL, WHICH ARE AS UNDER: ORIGINAL GROUND HAS BEEN SPLIT INTO TWO SEPARATE GR OUNDS AS UNDER; 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, HON'BLE CIT-A-34, HAS ERRED IN CONFIRMING THE ADDIT ION OF RS.12,72,985/-ON ACCOUNT OF BOGUS PURCHASES BY OVER LOOKING THE DETAILS FURNISHED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, HON'BLE CIT-A-34, HAS ERRED IN DENYING THE EXEMPTIO N IN RESPECT OF RS.1,25,470/-, SHOWN AS AGRICULTURAL INCOME. ADDITIONAL GROUNDS: (THESE WERE RAISED BEFORE HON. CIT- A. HOWEVER, INADVERTENTLY, SKIPPED IN MAKING THE AP PEAL BEFORE HON. ITAT.) 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, HON'BLE CIT-A-34, HAS ERRED IN CONFIRMING THE ADDIT ION OF RS. 28,339/- IN RESPECT OF THE CASH BALANCE, WITHOUT PR OPERLY APPRECIATING THE FACTS PLACED ON RECORDS. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, HON'BLE CIT-A-34, HAS ERRED IN MAKING AD-HOC DISALL OWANCE OF RS.58,045/- OUT OF THE BUSINESS EXPENSES WITHOUT MAKING COMPARISON WITH THE EXPENSES OF THE PRECEDIN G ASSESSMENT 3. DURING THE COURSE OF HEARING, IT WAS STATED AT THE OUTSET BY THE LD. COUNSEL THAT IN THIS CASE TIME ALLOWED BY THE LD. C IT(A) WAS VERY SHORT AND THEREFORE, COMPLETE EVIDENCES COULD NOT BE ARRANGED AND FILED. THE LD. COUNSEL MOVED PETITION U/R 29 FOR FILING ADDITIONAL EVIDENCES. IT IS NOTED FROM THE ADDITIONAL EVIDENCES THAT THE ASSESSEE HAS ARRANGED CONFIRMATION FROM SUPPLIERS AFTER MAKING EFFORTS WH ICH WERE NOT AVAILABLE AT THE TIME OF ASSESSMENT AND FIRST APPELLATE PROCE EDINGS. THE ASSESSEE HAS ALSO PREPARED RECONCILIATION STATEMENTS WHICH C OULD NOT BE SUBMITTED BEFORE THE LOWER AUTHORITIES AND SUBMITTED THAT THE SE DOCUMENTS ARE 3 I.T.A. NO.4952/MUM/2014 VERY CRUCIAL FOR DECIDING THIS ISSUE. 4. PER CONTRA, THE LD. DR FAIRLY AGREED THAT THIS APPE AL MAY BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 5. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES AS WELL AS THE PETITION FILED BY THE ASSESSEE U/R 2 9 FOR ADMISSION OF ADDITIONAL EVIDENCE. AFTER TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND IT APPROPRIATE T O SEND ALL THE GROUNDS RAISED BEFORE US BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE, AND THE ASSESSEE SHALL FURNISH ALL THE DETAILS AND EVIDENCE S AS MAY BE DIRECTED BY THE ASSESSING OFFICER FROM TIME TO TIME AND AS MAY BE CONSIDERED APPROPRIATE BY THE ASSESSEE. THE ASSESSEE IS FREE TO RAISE ALL THE LEGAL AND FACTUAL ISSUES BEFORE THE ASSESSING OFFICER. THE A SSESSING OFFICER SHALL DECIDE THESE ISSUES RAISED BEFORE US BY WAY OF THE AFORESAID GROUNDS AFTER CONSIDERING ALL THE MATERIALS AS MAY BE BROUGHT BEF ORE HIM BY THE ASSESSEE. THUS, WITH THESE DIRECTIONS, THESE GROUN DS ARE SENT BACK TO THE FILE OF THE ASSESSING OFFICER AND MAY BE TREATED AS ALLOWED, FOR STATISTICAL PURPOSE. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF HEARING. SD/- SD/- (AMIT SHUKLA) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 7 TH NOVEMBER, 2016 PK/- 4 I.T.A. NO.4952/MUM/2014 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , G-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES