SURAJBHAN RAJKUMAR PVT. LTD, MUMBAI V. ACIT CEN CIR-34, MUMBAI

ITA 5022/MUM/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1605 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 21-10-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 08-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARESH KR BALODIA
• Assessee Lawyers: KUNAL BESWAL
• Keywords: Bogus purchase
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH: MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI V D RAO, JUDICIAL MEMBER ITA NO 5022/MUM/2008 (ASSESSMENT YEAR: 2003-04) SURAJBHAN RAJKUMAR PRIVATE LIMITED , 402, VYAPAR BHAVAN, 49, P DMELLO ROAD, MUMBAI -400 009 PAN: AABCS 4007 M VS ACIT-CENTRAL CIRCLE 34 , ROOM NO 402, AAYAKAR BHAVAN, M K ROAD, MUMBAI -400 020 APPELLANT RESPONDENT APPELLANT BY: SMT KUNAL BESWAL RESPONDENT BY: SHRI NARESH KR BALODIA ORDER PER PRAMOD KUMAR 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CHALLENG ED CORRECTNESS OF CIT (A)S ORDER DATED 21ST JULY 2008 ON THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD CIT (APPEALS) LEGALLY ERRED IN CONFIRMING THE ORDER OF THE AO FOR ADDITION OF EXTRA PROFITS AT RS 3,50,856/- ON ALLEGED BOGUS PURCHASES. 1.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD COMMISSIONER OF INCOME TAX (APPEALS) LEGALLY ERRED IN CONFIRMING THE ADDITION MADE BY THE AO IN AS MUCH AS THE SAID ORDER IS BAD IN LAW AS TH E ADDITION WAS MADE WITHOUT PROVIDING THE COPY OF THE STATEMENT RECORDE D, WITHOUT ISSUE OF SHOW CAUSE NOTICE AND FURTHER FAILED TO GIVE OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE/REBUT THE FINDINGS USED BY THE AO BEHIND TH E BACK OF THE APPELLANT IN RESPECT OF ALLEGED BOGUS PURCHASES. THEREFORE, THE ORDER CONFIRMED BY THE LD CIT (APPEALS) FOR THIS IMPUGNED ADDITION OF RS 3,50 ,806 IS VOID-AB-INTIO AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD CIT (APPEALS) LEGALLY ERRED IN CONFIRMING THE ACTION OF THE AO IN CHARGING INTEREST UNDER SECTION 234B OF THE ACT WHICH IS LEGALLY NOT CHARGE ABLE AT ALL [REFER INTERALIA 299 ITR (AT) 286]. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR A MEND THE GROUNDS OF APPEAL ON OR BEFORE THE HEARING OF THIS APPEAL. SURAJBHAN RAJKUMAR PRIVATE LIMITED 2 2. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE IS SUE IN APPEAL IS NOW COVERED BY TRIBUNALS ORDER DATED 7TH SEPTEMBER 2009 IN ASSESS EES OWN CASE FOR THE ASSESSMENT YEAR 2004-05. LEARNED REPRESENTATIVES F URTHER AGREE THAT IN VIEW OF THE SAID DECISION OF THE CO-ORDINATE BENCH, WHICH WILL APPLY MUTATIS MUTANDI TO THIS APPEAL AS WELL, THE MATTER IS REQUIRED TO BE REMITT ED TO THE FILE OF THE ASSESSING OFFICER AFTER GIVING YEAR ANOTHER OPPORTUNITY OF HE ARING TO THE ASSESSEE. 3. IN VIEW OF THE ABOVE DISCUSSIONS, WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJU DICATION AFTER GIVING A DUE AND FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESS ING OFFICER SHALL DEAL WITH THE CONTENTION OF THE ASSESSEE BY WAY OF A SPEAKING ORD ER AND IN ACCORDANCE WITH THE LAW. 4. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 26TH OCTO BER 2009. SD/- (V D RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATE: 26TH OCTOBER 2009 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CENTRAL-VI, MUMBAI. 4) THE CIT CENTRAL- III, MUMBAI. 5) THE D.R. E BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI SURAJBHAN RAJKUMAR PRIVATE LIMITED 3 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 26.10.09 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 26.10.09 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER