R.S.PETROCHEM, Mumbai V. INCOME TAX OFFICER WARDS 2(3), Kalyan-Dombivali

ITA 5463/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7229 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMLATHA
• Keywords: Bogus purchase
• Section: 69C; 143(3); 10

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B. R. BASKARAN , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 5463 /MUM/2017 ( / ASSESSMENT YEAR: 2009 - 10 ) R. S. PETROCHEM, R. S. COMPLEX, OPP - AILSINGHANI CHAMBERS, KALYANAMBERNATH ROAD, ULHASNAGAR, MUMBAI - 421003 / VS. ITO WD - 2(3 ), I.T. OFFICER MOHAN PLAZA, WAYLENAGAR, KHADAKPADA, KALYAN - DOM BIVALI , MUMBAI - 421301 ./ ./ PAN/GIR NO. A AEF R2670R ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI VIJAY MEHTA, AR / RESPONDENT BY : MS. N. HEMLATHA, DR / DATE OF HEARING : 05/04 /201 8 / DATE OF PRONOUNCEMENT : 04/05/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENTAPPE AL S FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. COMMISSI ONER OF INCOME TAX (APPEAL) 3 , THANE , DATED 24.10.16 F OR AY 2009 - 10 . 2 I.T.A. NO. 5463 /MUM/201 7 R. S. PETROCHEM, 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A DEALER IN PETROLEUM PRODUCTS. THE ASSESSMENT WAS REOPENED ON THE BASIS OF INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT THAT A PARTY M/S SIDDHIVINAYAK CORPORATION FROM WHOM THE ASSESSEE HAD MADE PURCHASES TO THE TUNE OF RS. 41,35,000/ - WAS INVOLVED IN PROVIDING HAWALA ENTRIES AND THE ASSESSEE WAS ONE OF THE BENEFICIARIES. AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE, THE ORDER OF ASSESSEE U/S 143(3) R.W.S. 147 OF THE I.T. ACT WAS PASSED ON 18.03.15, THEREBY MAKING ADDITIONS U/S 69C OF THE I.T. ACT. 3 . AGGRIEVED BY THE OR DER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES DISMISSED THE APPEAL OF THE ASSESSEE. NOW BEFORE US, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL. 4 . AT THE VERY OUTSET, LD. AR APPEAR ING ON BEHALF OF THE ASSESSEE SUBMITTED THAT L D. CIT(A) ERRED IN LAW AS WELL AS ON FACTS WHILE DISMISSING APPEAL WITHOUT GRANTING PROPER OPPORTUNITY OF HEARING. IT WAS FURTHER SUBMITTED BY LD. AR THAT 3 I.T.A. NO. 5463 /MUM/201 7 R. S. PETROCHEM, LD. CIT( A) ALSO ERRED IN CONFIRMING THE ADDITION ON ACCOUNT OF ALLEGED BOGUS PURCHASES FROM SO CALLED HAWALA DEALERS WITHOUT VERIFYING THE CASE RECORDS. 5 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSE SSEE HAD INTENTIONALLY NOT APPEARED BEFORE LD. CIT(A) AND THE ORDERS PASSED BY LD. CIT(A) NEEDS NO INTERFERENCE . 6 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY REVENUE AUTHORITIES. FROM THE RECORDS, WE NOTICED THAT THE ASSESSEE HAD NOT RESPONDED TO THE NOTICES ISSUED BY THE AO DURING THE ASSESSMENT PROCEEDINGS AND EVEN D URING THE APPELLATE PROCEEDINGS, IN RESPONSE TO NOTICE U/S 250 OF THE ACT, THE ASSESSEE REMAINED NON - COOPERATIVE. IN THIS RESPECT, LD. CIT(A) IN PARA NO. 3.0 HAS MENTIONED THE DATES AND REMARKS FOR NON - APPEARANCE/NON - COOPERATION ON THE PART OF ASSESSEE. THEREFORE, IN THE ABSENCE OF ASSESSEE OR HIS REPRESENTATIVE, THE LD. CIT(A) 4 I.T.A. NO. 5463 /MUM/201 7 R. S. PETROCHEM, CONFIRMED THE ORDER OF AO B Y HOLDING THAT ASSESSEE HAS NOTHING TO OFFER ANY EXPLANATION IN SUPPORT OF HIS GROUNDS OF APPEAL. BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY , WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTING THE APPEAL ON MERITS . IN OUR VIEW, IF THE ASSESSEE IS ALLOWED TO REPRESENT HIS CASE BEFORE LD. CIT(A) THEN IN THAT EVENTUALITY , NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE ADJUDICATED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY. THEREFORE, KEEPING IN VIEW THE ABOVE DISCUSSION , WE SET ASIDE THE EX - PARTE ORDER PASSED BY LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE AND THEREAFTER PASS AFRESH ORDER ON ALL THE GROUNDS RAISED BY THE ASSESSEE. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE T HE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL 5 I.T.A. NO. 5463 /MUM/201 7 R. S. PETROCHEM, IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY T HE LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. RESULTANTLY THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT O N 4 TH MAY , 201 8. SD/ - SD/ - ( B. R. BASKARAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 04 . 05 .201 8 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI