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

ITA 532/NAG/2016

• Counselvise Citation: [2014] 117 COUNSELVISE.COM (IT) 8904 (ITAT-NAGPUR)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 23-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 05-10-2016
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Bogus purchase; Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO.532/NAG./2016 (ASSESSMENT YEAR : 201112 ) RAMAMURTHY B. KAPAVARAPU 416, PRATIBIMB APARTMENT TRIMURTY NAGAR, NAGPUR 440 003 PAN AGLPK6753D . APPELLANT V/S INCOME TAX OFFICER WARD8(1), AMBEDKAR BHAWAN SEMINARY HILLS, NAGPUR 440 001 . RESPONDENT ASSESSEE BY : SHRI MANOJ MORYANI REVENUE BY : SHRI A.R. NINAWE DATE OF HEARING 30.03.2017 DATE OF ORDER 30.03 .2017 O R D E R PER SHAMIM YAHYA, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST IMPUGNED ORDER DATED 9 TH AUGUST 2016, PASSED BY THE LEARNED COMMISSIONER (APPEALS)I, NAGPUR, FOR ASSESSMENT YEAR 201112. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED B ELOW: 1. THE ORDER PASSED IS ILLEGAL, INVALID AND BAD IN LAW. 2. THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NAGP UR ERRED IN NOT CONSIDERING THE CONDONATION OF DELAY APPLICA TION BY OF 433 FOR WANT OF NON RECEIPT OF NOTICE, THEREFORE ORDER PASSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 2 RAMAMURTHY B. KAPAVARAPU 3. THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NAGP UR ERRED IN CONFIRMING THE ADDITION OF RS. 62,48,896/- ON AC COUNT OF BOGUS PURCHASES, THEREFORE ORDER PASSED IS UNJUSTIFIED, U NWARRANTED AND EXCESSIVE. 4. THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NAGP UR ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF HAWALA TRANSACTION IN CASE OF BIPIN RATHI (HUF) VIDE APPEAL NO. CIT(A)-I/ 329/2014-15 DATED 29/02/2016, THEREFORE ORDER PASSED IS UNJUSTI FIED, UNWARRANTED AND EXCESSIVE. 2. IN THE PRESENT CASE, AT THE OUTSET THE LEARNED COUN SEL FOR ASSESSEE SUBMITTED THAT FACTS IN THIS CASE ARE SIMI LAR TO THE ASSESSEES OWN CASE DEALT BY THIS TRIBUNAL FOR ASSESSMENT YEAR 201011 IN ITA NO.531/NAG./2016, DATED 19 TH JANUARY 2017, WHEREIN THIS TRIBUNAL HAS CONDONED THE DELAY OF 822 DAYS AND REFERRED THE MAT TER TO THE LEARNED COMMISSIONER (APPEALS) TO CONSIDER THE ISSUE ON MER ITS BY TAKING INTO ACCOUNT THE SUBMISSIONS OF THE ASSESSEE AND GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 3. PERCONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE OBSERVATIONS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THE AFORESAID CASE RELIED UPON BY THE LEARNED COUNSEL FOR ASSESSEE, THIS TRIBUNAL HAS CONSIDERED THE ISSUE AND HELD AS UNDER: 5. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE DELAY WAS 3 RAMAMURTHY B. KAPAVARAPU CAUSED ON ACCOUNT OF THE RECEIPT OF THE AOS ORDER BY THE FATHER OF THE ASSESSEE WHO WAS VERY AGED AND HAD MENTAL PROBL EMS AND WAS MEDICALLY UNFIT. THIS LED TO THE DELAY IN HANDI NG OVER THE ORDER TO THE ASSESSEE FOR FILING APPEAL. IN THIS RE GARD LEARNED COUNSEL SUBMITTED THAT THE SAME SUBMISSION WAS MADE BEFORE THE LEARNED CIT(APPEALS) BUT HE HAS REJECTED THE SAME B Y HOLDING THAT CORROBORATIVE EVIDENCE IN THIS REGARD WAS NOT SUBMITTED. THE ASSESSEES COUNSEL SUBMITTED THAT THE ASSESSEE WAS NEVER GIVEN ANY NOTICE FOR SUBMISSION OF MEDICAL CERTIFICATE ET C. LEARNED COUNSEL SUBMITTED THE AFFIDAVIT AS WELL AS A CERTIF ICATE 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 ASSE SSEE HAS A VERY STRONG CASE INASMUCH NO CORROBORATIVE EVIDENCE WAS BROUGHT ON RECORD BY THE AO REGARDING TRANSACTION BEING BOG US EXCEPT FOR STATEMENT OBTAINED ON SURVEY. LEARNED COUNSEL SUBMI TTED THAT AS PER HONBLE APEX COURT DECISION IN THE CASE OF S. K ADAR KHAN 254 CTR 228, A STATEMENT OBTAINED ON SURVEY DEHORSE ANY CORROBORATIVE EVIDENCE CANNOT BE A SOLE BASIS OF AD DITION. LEARNED COUNSEL FURTHER SUBMITTED THAT IN IDENTICAL TRANSAC TION LEARNED CIT(APPEALS) HAS HIMSELF DELETED SIMILAR ADDITION I N THE CASE OF BIPIN RATHI (HUF) VIDE APPEAL NO. CIT(A)-IS/329/201 4-15 DATED 29/02/2016. 7. PER CONTRA LEARNED D.R. RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 8. UPON CAREFUL CONSIDERATION I FIND THAT INTEREST OF JUSTICE DEMANDS THAT THE DELAY IN THIS CASE BE CONDONED. TH E REASONABLE CAUSE ATTRIBUTED IS THAT THE ORDER WAS RECEIVED BY ASSESSEES FATHER WHO WAS SUFFERING FROM MENTAL AILMENT. IN TH IS REGARD THE ASSESSEE HAS SUBMITTED MEDICAL CERTIFICATE ALSO. LE ARNED CIT(APPEALS) HAS DISBELIEVED THIS SUBMISSION BY NOT ING THAT NO CORROBORATIVE EVIDENCE HAD BEEN SUBMITTED. NOW IT I S 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 DELA Y MAY KINDLY BE CONDONED. FURTHER MORE LEARNED COUNSEL OF THE A SSESSEE HAS SUBMITTED THAT THE ADDITION FOR BOGUS TRANSACTION I S NOT BASED UPON ANY COGENT EVIDENCE. IT IS ALSO SUBMITTED THAT SIMILAR ADDITION WAS DELETED BY THE LEARNED CIT(APPEALS) HI MSELF IN ANOTHER CASE. 9. CONSIDERING THE PRESENT CASE ON THE CONSPECTUS O F ABOVE FACTUAL SCENARIO, I AM OF THE CONSIDERED OPINION TH AT THE DELAY IN THIS CASE FOR FILING APPEAL BEFORE THE LEARNED CIT( APPEALS) 4 RAMAMURTHY B. KAPAVARAPU 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 REMI TTED TO THE FILE OF LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) SHALL CONSIDER THE ISSUE ON MERITS BY TAKING INTO ACCOUNT THE SUBMISSI ON OF THE ASSESSEE AND GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 5. SINCE THE FACTS ARE IDENTICAL, FOLLOWING THE PRECED ENCE AS ABOVE, WE HOLD THAT THE DELAY IN THE PRESENT CASE FOR FILI NG APPEAL BEFORE THE REVENUE AUTHORITIES DESERVES TO BE CONDONE. ACCORDI NGLY, THE DELAY IN THIS CASE IS HEREBY CONDONED AND THE MATTER IS REST ORED TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS). THE LEARNED COM MISSIONER (APPEALS) SHALL CONSIDER THE ISSUES ON MERIT BY TAK ING INTO ACCOUNT THE SUBMISSIONS OF THE ASSESSEE AND PROVIDING ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.03.2017 SD/ - RAM LAL NEGI JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER NAGPUR, DATED: 30.03.2017 5 RAMAMURTHY B. KAPAVARAPU COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, NAGPUR