ATMAN OVERSEAS P.LTD, MUMBAI V. ITO 6(1)(4), MUMBAI

ITA 5410/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0392 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 24-08-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN DR SHRI V N RAO; VY O
• Assessee Lawyers: LAW APPLICABLE THERETO
• Keywords: Bogus purchase; Opportunity of being heard; Accommodation entries; Reason to believe
• Section: 69C; 142(1); 133A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 5410 / MUM/ 20 1 5 ( / ASSESSMENT YEAR: 2009 - 10 ) ATMAN OVERSEAS P. LTD, 505/506, YOGESHWAR, 135, KAZI SAYED STREET, MASJID BUNDER WEST, MUMBAI - 400009 / VS. ITO 6(1)(4) AAYAKAR BHAVAN MUMBAI ./ ./ PAN/GIR NO. : AADCA 1936 D ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 29 .11 .2017 / DATE OF PRONOUNCEMENT : 23 . 02 . 201 8 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL A GAINST THE ORDER DATED 28 .0 9 .201 5 , PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 12 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO THE AY. 2009 - 10 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LEARNED CIT(A} - 12, MU MBAI [CIT{A)] ERRED IN CONFIRMING THE ORDER OF THE ITG AND DISMISSING THE APPEAL. 2. THE LEARNED C1T(A) ERRED IN NOT APPRECIATING FACTS OF THE CASE PROPERLY AND THE LAW APPLICABLE THERETO. REVENUE BY: SHRI V. JUSTIN (DR) ASSESSEE BY : SHRI V.N. RAO & MS. VY OMA RAO ITA. NO.5410 /M/1 5 A.Y.2009 - 10 2 3. THE LEARNED CIT(A) ERRED IN UPHOLDING RE - OPENING O F ASSESSMENT U/S.147 BY THE AO AS LEGALLY VALID. HE OUGHT TO HAVE APPRECIATED THAT MERELY ON THE BASIS OF INFORMATION FROM SALES TAX DEPARTMENT AND WITHOUT ANY FURTHER INQUIRY THE AO COULD NOT HAVE FORMED THE BELIEF THAT ANY INCOME HAD ESCAPED ASSESSMENT A ND THEREFORE THE CIT(A) ERRED IN UPHOLDING THE ORDER OF AO, 4. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE AO HAD MADE ADDITIONS WITHOUT SUBSTANTIAL AND/OR ADEQUATE EVIDENCE TO PROVE VARIOUS PURCHASES MADE BY THE APPELLANT WERE NOT GENUINE . 5. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT IN SIMILAR CASES THE TRIB UNALS INCLUDING MUMBAI APPELLATE TRIBUNAL HAVE BEEN PASSING DECISIONS AGAINST THE DEPARTMENT HOLDING THAT MERELY ON THE BASIS OF REPORTER INFORMATION FROM AN AUTHORITY A ND WITHOUT BRINGING ON RECORD POSITIVE EVIDENCE TO THE PROVE THE ALLEGED BOGUS PURCHASES WERE WRONG, INCORRECT AND UNREASONABLE. 6. THE ORDER PASSED BY CIT(A) IS ILLEGAL AND VITIATED BY LAW AS NO ADEQUATE OPPORTUNITY WAS GIVEN TO THE APPELLANT. SHE OUGHT T O H HAVE APPRECIATED THAT WITH JURISDICTIONAL CHANGES THAT INTERVENED ASSESSMENTS AND APPEALS AND WITHIN APPELLATE AUTHORITIES, SHE OUGHT T O HAVE GIVEN ADEQUATE OPPORTUNITY TO THE APPELLANT BEFORE DISMISSING THE APPEAL. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME ON 30 .09.200 9 DECLARING TOTAL INCOME TO THE TUNE OF RS.7,31,710 / - FOR THE A.Y. 2009 - 10 . THE RETURN WAS PROCESSED U/S 143(1) OF THE I.T. ACT, 1961 DATED 10.03.2011 RESULTING IN A REFUND OF RS.27,820/ - . A NOTICE U /S 148 OF THE I.T. ACT, 1961 WAS ISSUED ON 22.02.2013. IN RESPONSE TO THE SAID NOTICE , THE ASSESSEE FILED HIS RETURN OF INCOME ORIGINALLY FILED ON 30.09.2009. THEREAFTER, NOTICE U/S 143(2) OF THE ACT DATED 03.04.2013 WAS ISSUED AND SERVED UPON THE ASSESSEE . A NOTICE U/S 142(1) OF THE ACT ALONG WITH A QUESTIONNAIRE WAS ISSUED ITA. NO.5410 /M/1 5 A.Y.2009 - 10 3 AND SERVED UPON THE ASSESSEE. THE CASE OF THE ASSESSEE WAS REOPENED ON THE FOLLOWING REASONS: - 4 AS REQUESTED ASSESSEE WAS ALSO PROVIDED THE REASONS RECORDED ON 22.02.2013, VIDE LETT ER DATED 10.02.2014, THE SAME IS REPRODUCED AS UNDER: - FROM THE DETAILS REGARDING BOGUS PURCHASE RECEIVED FROM SALES TAX DEPARTMENT, IT IS SEEN THAT M/S. ATMAN OVERSEAS PVT. LTD. HAS BEEN TAKEN ACCOMMODATION ENTRIES FROM THE FOLLOWING CONCERNS THE DETAI LS OF WHICH IS AS UNDER: - NAME OF THE PURCHASE PARTY F.Y. INVOLVED AMOUNT OF PURCHASE INVOLVED RIDHI ENTERPRISES 2008 - 09 28,39,416 TO MAKE FURTHER ENQUIRIES WITH REGARD TO BOGUS PURCHASE ENTRIES BY THE ASSESSEE COMPANY AMOUNTING TO RS.28,39,416/ - PERTAIN ING TO F.Y.2008 - 09 RELEVANT TO A.Y. 2009 - 10, A SURVEY ACTION U/S 133A WAS CONDUCTED ON 29.11.2012. IN THE SURVEY PROCEEDINGS ASSESSEE HAS NEITHER PRODUCED BOOKS OF ACCOUNTS NOR ABLE TO GIVE SATISFACTORY EXPLANATION IN RESPECT OF THE PURCHASES. TILL DATE AS SESSEE HAS NOT PRODUCED BOOKS OF ACCOUNTS IN SUPPORT OF ITS CLAIM. THEREFORE, IT IS PROVEN FACT THAT THESE PURCHASES ARE BOGUS PURCHASE AND ASSESSEE HAS SUPPRESSED THE PROFIT TO THAT EXTENT. I AM THEREFORE, REASON TO BELIEVE THAT AN INCOME TO THE EXTENT OF RS.28,39,416/ - CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR A.Y. 2009 - 10. HENCE TO ASSESS THIS INCOME NOTICE U/S 148 IS ISSUED. 4. AFTER THE RECEIPT OF THE NOTICE , THE ASSESSEE FILED THE REPLY TO THE NOTICE AND THE ASSESSING OFFICER RAISED THE ADDITION T O THE TUNE OF RS.28,39,416/ - IN VIEW OF PROVISION 69C OF THE ACT. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.35,71,130/ - . THEREAFTER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL BY ITA. NO.5410 /M/1 5 A.Y.2009 - 10 4 VIRTUE OF ORDER DATED 28.0 9.2015, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 5. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE C IT(A) HAS PASSED THE ORDER DATED 28.09.2015 WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, T HERE FORE, IN THE SAID CIRCUMSTANCES THE ORDER DATED 28.09.2015 IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW. HOWEVER, ON THE OTHER HAND, THE L D. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORDER DATED 28.09.2015 , WE NOTICED THAT THE ORDER DATED 28.09.2015 HAS BEEN PASSED IN THE ABSENCE OF THE ASSESSEE AS WELL AS IN THE ABSENCE OF THE LD. REPRESENTATIVE O F THE DEPARTMENT. NO OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE ASSESSEE GIVEN TO THE ASSESSEE . THE ASSESSEE IS CLAIMING TO BE AN OPPORTUNITY BEFORE THE CIT(A) . SINCE THE ORDER IN QUESTION HAS BEEN PASSED BY THE CIT(A) EX - PARTE WITHOUT GIVING AN OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE, T HEREFORE, WE ARE OF THE VIEW THAT AN OPPORTUNITY OF BEING HEARD IS REQUIRED TO BE GIVEN BEFORE PASSING THE ORDER IN THE INTEREST OF JUSTICE. THEREFORE, WE SET ASIDE THE ORDER IN QUESTION AND REMAND THE ISSUE BEFORE THE CIT(A) TO DECIDE A MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ITA. NO.5410 /M/1 5 A.Y.2009 - 10 5 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HERE BY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COU RT ON 23. 02 . 20 18 . SD/ - SD/ - ( SHAMIMYAHYA ) ( AMARJIT SINGH ) / ACCOU NTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 23 . 02 .2018 VIJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. RE GISTRAR) , / ITAT, MUMBAI