RAMAMURTHY B KAPAVARAPU, Nagpur V. I.T.O. WARD -8(1), Nagpur

ITA 531/NAG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7654 (ITAT-NAGPUR)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 05-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Bogus purchase; Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

1 ITA NO. 531/NAG/2016. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 531/NAG/2016. ASSESSMENT YEAR : 20 10 - 11. RAMAMURTHY B. KAPAVARAPU , THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 8(1), NAGPUR. PAN AGLPK 6753D. APPELLANT. RESPONDENT. APPELLANT BY : SHRI MANOJ MORYANI. RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 19 - 01 - 2017. DATE OF PRONOUNCEMENT : 1 9 T H JANUARY, 2017. O R D E R. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 09 - 08 - 2016 AND PERTAINS TO ASSESSMENT YEAR 2010 - 11. THE GROUNDS OF APPEAL READ AS UNDER : 1. THE ORDER PASSED IS ILLEGAL, INVALID AND BAD IN LAW. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR ERRED IN NOT CONSIDERING THE CONDONATION OF DELAY APPLICATION BY OF 822 FOR WANT OF NO0N RECEIPT OF NOTICE, THEREFORE ORDER PASSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR ERRED IN NOT CONFIRMING THE ADDITION OF RS.12,28,240/ - ON ACCOUNT OF BOGUS PURCHASES, THEREFORE ORDER PASSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR ERRED IN NOT FOLLOWING THE JUDGMENT OF HAWALA TRANSA CTION IN CASE OF BIPIN RATHI (HUF) VIDE APPEAL NO. CIT(A) - IS/329/2014 - 15 DATED 29/02/2016, THEREFORE ORDER PASSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 2 ITA NO. 531/NAG/2016. 2. IN THIS CASE THE AO MADE THE ADDITION OF RS.12,28,240/ - BY HOLDING CERTAIN PURCHASES TO BE BOGUS ON THE GROUND THAT THE BILLS WERE OBTAINED FROM HWALA OPERATORS. THE AO REFERRED TO INFORMATION RECEIVED BY THE INCOME TAX DEPARTMENT THAT THE TWO PARTIES WERE HAWALA OPERATORS. THE AO DID NOT MAKE ANY ELABORATION OF THE INFORMATION RECEIVED AND W HAT ENQUIRY THE AO HAS DONE IN THIS REGARD . H E PROCEEDED TO ADD THE ABOVE AMOUNT AS INCOME OF THE ASSESSEE. 3. UPON ASSESSEES APPEAL LEARNED CIT(APPEALS) DISMISSED THE ASSESSEES APPEAL ON THE GROUND OF DELAYED FILING OF APPEAL BY 822 DAYS. 4. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE DELAY WAS CAUSED ON ACCOUNT OF THE RECEIPT OF THE AOS ORDER BY THE FATHER OF THE ASSESS EE WHO WAS VERY AGED AND HAD MENTAL PROBLEMS AND WAS MEDICALLY UNFIT. THIS LED TO THE DELAY IN HANDING OVER THE ORDER TO THE ASSESSEE FOR FILING APPEAL. IN THIS REGARD LEARNED COUNSEL SUBMITTED THAT THE SAME SUBMISSION WAS MADE BEFORE THE LEARNED CIT(APPEA LS) BUT HE HAS REJECTED THE SAME BY HOLDING THAT CORROBORATIVE EVIDENCE IN THIS REGARD WAS NOT SUBMITTED. THE ASSESSEES COUNSEL SUBMITTED THAT THE ASSESSEE WAS NEVER GIVEN ANY NOTICE F O R SUBMISSION OF MEDICAL CERTIFICATE ETC. LEARNED COUNSEL SUBMITTED THE AFFIDAVIT AS WELL A S A CERTIFICATE FROM MEDICAL PRACTITIONER CERTIFYING THE MEDICAL ILLNESS OF ASSESSEES FATHER. LEARNED COUNSEL SUBMITTED THAT CONSIDERING THESE THE DELAY IN THIS CASE NEEDS TO BE CONDONED. 6. LEARNED COUNSEL FURTHER SUBMITTED THAT THE A SSESSEE HAS A VERY STRONG CASE INASMUCH NO CORROBORATIVE EVIDENCE WAS BROUGHT ON RECORD BY THE AO REGARDING TRANSACTION BEING BOGUS EXCEPT FOR STATEMENT OBTAINED ON SURVEY. LEARNED COUNSEL SUBMITTED THAT AS PER HONBLE APEX COURT DECISION IN THE CASE OF S. KADAR KHAN 254 CTR 228 , A STATEMENT OBTAINED ON SURVEY DEHORSE ANY 3 ITA NO. 531/NAG/2016. CORROBORATIVE EVIDENCE CANNOT BE A SOLE BASIS OF ADDITION. LEARNED COUNSEL FURTHER SUBMITTED THAT IN IDENTICAL TRANSACTION LEARNED CIT(APPEALS) HAS HIMSELF DELETED SIMILAR ADDITION IN THE CASE OF BIPIN RATHI (HUF) VIDE APPEAL NO. CIT(A) - IS/329/2014 - 15 DATED 29/02/2016. 7 . PER CONTRA LEARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8 . UPON CAREFUL CONSIDERATION I FIND THAT INTEREST OF JUSTICE DEMANDS THAT THE DELAY IN THIS CASE BE CONDONED. THE REASONABLE CAUSE ATTRIBUTED IS THAT THE ORDER WAS RECEIVED BY ASSESSEES FATHER WHO WAS SUFFERING FROM MENTAL AILMENT. IN THIS REGARD THE ASSESSEE HAS SUBMITTED MEDICAL CERTIFICATE ALSO. LEARNED CIT(APPEALS) HAS DISBELIEVED THIS SUBMISSION BY NOTING THAT NO CORROBORATIVE EVIDENCE HAD BEEN SUBMITTED. NOW IT IS THE SUBMISSION OF THE ASSESSEES COUNSEL THAT NO NOTICE FOR CORROBORATIVE EVIDENCE WAS CALLED FOR AND SINCE NOW PROPER CORROBORATIVE EVIDENCE HAS BEEN SUBMITTED, THE DELAY MAY KINDLY B E CONDONED. FURTHER MORE LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE ADDITION FOR BOGUS TRANSACTION IS NOT BASED UPON ANY COGENT EVIDENCE. IT IS ALSO SUBMITTED THAT SIMILAR ADDITION WAS DELETED BY THE LEARNED CIT(APPEALS) HIMSELF IN ANOTHER CAS E. 9 . CONSIDERING THE PRESENT CASE ON THE CONSPECTUS OF ABOVE FACTUAL SCENARIO, I AM OF THE CONSIDERED OPINION THAT THE DELAY IN THIS CASE FOR FILING APPEAL BEFORE THE LEARNED CIT(APPEALS) DESERVES TO BE CONDONED. HOWEVER, I REFRAIN TO PASS ANY JUDGMENT UPON MERITS OF THE CASE AS THE LEARNED CIT(APPEALS) HAS NOT DEALT WITH THE MERITS OF THE CASE. ACCORDINGLY THE DELAY IN THIS CASE IS BEING CONDONED AND THE MATTER IS BEING REMITTED TO THE FILE OF LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) SHALL CONSIDER TH E ISSUE ON MERITS BY TAKING INTO ACCOUNT THE SUBMISSION OF THE ASSESSEE AND GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 4 ITA NO. 531/NAG/2016. 10 . IN THE RESULT THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COU RT ON THIS 1 9 T H DAY OF JANUARY., 2017. S D / - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 1 9 T H JANUARY, 2017. COPY FORWARDED TO : 1. SHRI RMAMURTHY B. KAPAVARAPU 416, PRATIBIMB APARTMENT, TRIMURTY NAGAR, NAGPUR - 440003. 2. I.T.O., WARD - 8(1), NAGPUR. 3. C.I.T. - I, NAGPUR. 4. CIT(APPEALS), - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGIS TRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.