ACIT - 5(3)(1), MUMBAI V. SICORP FINLEASE P. LTD., MUMBAI

ITA 5287/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0423 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 25-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: POOJA SWAROOP
• Keywords: Bogus purchase; Opportunity of being heard
• Section: 133(6); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO.5287/MUM./2016 (ASSESSMENT YEAR: 2006 - 07 ) ACIT - 5(3)(1) ROOM NO.573, 5 TH FLOOR, AAYAKAR BHAVAN M.K.ROAD, MUMBAI 400 020 . APPELLANT V/S M/S. SICORP FINLEASE PVT. LTD., 13/21, LAURA BUILDING, 1 ST FLOOR, OPP. KYANI BACKERY, DHOBI TALAO, NEAR METRO CINEMA, MUMBAI 400 002 PAN NO: AABCS1719E . RESPONDENT ASSESSEE BY : MS. POOJA SWAROOP REVENUE BY : SHRI NEERAJ MANGLA DATE OF HEARING 08.08.2017 DATE OF ORDER - 11 .0 8 .2017 O R D E R PER: SHAMIM YAHYA THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER OF LEARNED CIT - A DATED 31/5/2016 AND PERTAINS TO ASSESSMENT YEAR 200 6 - 07. 2. THE GROUND S OF APPEAL READ AS UNDER : - 1. WHETHER ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS CORRECT IN DELETING THE ADDITION MADE BY THE AO OF BOGUS PURCHASES OF RS.39,00,000/ - ON THE BASIS OF SUBMISSIONS MADE BY THE ITA NO. 5287/MUM/2016 M/S. SICORP FINLEASE PVT. LTD., 2 APPELLANT WHICH WERE NOT AVAILABLE BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE ORDER OF THE AO BE RESTORED. 3. I N THIS CASE THE ASSESSING OFFICER PASS ED AN ORDER UNDER SECTION 144 OF THE IT ACT. HE NOTED THAT NEITH ER THE ASSESSEE NO R THE AUTHORISED REPRESENTATIVES APPEARED AND FURNISHED THE REQUIRED DETAILS. HENCE REFERRING TO THE INVESTIGATION REPO RT HE MADE AN ADDITION OF RS. 39 , 00,000 / - AS BOGUS PURCHASE. HE ALSO REFERRED TO CBI INVESTIGATIONS IN THIS REGARD. 4. B EFORE THE LEARNED CIT - A IT WAS SUBMITTED THAT THESE WERE NOT ACTUALLY BOGUS PURCHASES. IT WAS SUBMITTED THAT ASSESSEE HAS ACTUALLY TAKEN LOANS. THE LEARNED CIT - A ACCEPTED THE SUBMISSIONS. HE CONCLUDED AS UNDER : - 5.2. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE ID.AR. AS SEEN FROM THE FACTS OF THE CASE THE APPELLANT HAS RECEIVED LOAN ON SEVERA L DATES FROM M/S BASANT MARKETING P. LTD IN THE FINANCIAL YEAR 2003 - 04 AND REPAIRED CERTAIN AMOUNTS THEREBY LEAVING A BALANCE OF RS. 3 9, LAKHS AS ON 31/3/07 RELEVANT IS MIGHTIER 2007 - 08 WHICH MEANS TO SAY THAT DURING THE YEAR UNDER CONSIDERATION I E. ASSESSMENT YEAR 2006 - 07 THE AMOUNT OUTSTANDING REMAINS TO BE RS. 39 LAKHS. BUT IT TS ALONE AND NOT PURCHASES AS ALLEGED BY THE AO AS EVIDEN T FROM THE BALANCE SHEET. IT IS ALSO EVIDENT FROM THE LETTER COPIES AND BANK STATEMENTS OF BOTH THE PARTI E S FILED BEFORE ME. THUS IT IS EVIDENT THAT THERE IS NO TRANSACTION WHATSOEVER WITH TH E PARTY DURING THE YEAR UNDER CONSIDERATION. THE LEDGER ACCOUNT O F THE APPELLANT COMPANY FOUND IN THE BOOKS OF THE PARTY IS SHOWN AS UNDER - BASANT MARKETING PVT LTD. & SICORP FINANCE LTD. DATE PARTICULARS DEBIT CREDIT 28.08.2003 ABN AMRO BANK 15,00,000.00 12.09.2003 ABN AMRO BANK 75,00,000.00 ITA NO. 5287/MUM/2016 M/S. SICORP FINLEASE PVT. LTD., 3 1 5 .09.2003 ABN AMRO BANK 10,00,000.00 21.10.2003 BANK OF INDIA 6, 00, 000. 00 07.11 2003 BANK OF INDIA 13, 00,000 . 00 10.03.2004 ABN AMRO BANK 50,00,000.00 1,0 4,0 0,000.00 65,00,000.00 39,00,000.00 CLOSING BALANCE 1,04,00,000.00 1,04,00,000.00 5.2.1. IT IS EVIDENT FROM THE ABOVE THAT THERE IS NO PURCHASE OR SALE BY THE APPELLANT COMPANY NOR ANY LOAN TAKEN OR PAID DURING THE YEAR UNDER CONSIDERATION FROM M/S BASANT MARKETING P. LTD. IF AT ALL, THE AO SHOULD HAVE REOPENED THE ASSESSMENT HARASSMENT 2004 - 05 AND EXAMINED INDEPENDENTLY THE GENUINENESS OF LOAN TAKEN IN ASSESSMENT YEAR 2003 - 04. THE OUTSTANDING LIABILITY IN THE PRESENT IS MIGHTIER CANNOT BE ADDED BY TOUTING SUCH LIABILITY WHICH WAS REPAID IN DUE COURSE AS WAS SUBMITTED BY THE ID.AR. FURTH ER, THE PARTY ALSO HAS GIVEN CONFIRMATION IN RESPONSE TO LETTER ISSUED BY THEIR WAR U/S 133(6) STATING THAT THERE IS NO TRANSACTION OF PURCHASE OR SALE DURING FINANCIAL YEAR RELEVANT TO THE PRESENT ASSESSMENT YEAR. IN VIEW OF THE ABOVE DISCUSSION, THE ADDI TION MADE BY THE AO TREATING THE AMOUNT OF RS. 39, 00, 000 AS BOGUS PURCHASE DURING THE YEAR IS HELD AS NOT VALID. THE SAME IS DIRECTED TO BE WITHDRAWN. THE GROUND IS ALLOWED. 6. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED 5. AGAINST THE ABOVE ORDE R REVENUE IS IN APPEAL BEFORE US. 6 . WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT ASSESSING OFFICER HAS MADE THE ADDITION BY HOLDING THE SUM INVOLVED IS BOGUS PURCHASE. ON THE OTHER HAND LEARNED CIT - A HAS ACCEPTED THE CONTENTION THAT THESE ARE NOT PURCHASES, RATHER THE ASSESSEE HAS TAKEN LOANS. WE FIND THAT THESE ARE DIAMETRICALLY OPPOSITE FINDINGS. IN OUR CONSIDERED OPINION IT WAS INCUMBENT UPON THE LEARNED CIT - A TO REMAND THE FRESH SUBMISSIONS AND ITA NO. 5287/MUM/2016 M/S. SICORP FINLEASE PVT. LTD., 4 DOCUMENTS RECEIVED BY HIM TO THE ASSESSING OFFICER FOR HIS COMMENTS. WE DO NOT FIND ANY REFERENCE IN THIS REGARD 7 . HENCE , IN THE INTEREST OF JUSTICE WE DEEM IT APPROPRIATE TO REMIT THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE SUBMISSIONS MADE BEFORE THE LEARNED CIT - A AND T HEREAFTER DECIDE AS PER LAW. NEEDLESS TO ADD THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 8 . I N THE RESULT THIS APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 1 1 .0 8 .2017 S D / - S D / - SANDEEP GOSAIN SHAMIM YAHYA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 1 1 .08 .2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE. BY ORDER KARUNA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI