ITO 20(1)(4), MUMBAI V. DESIGN O FOOTWEAR, MUMBAI

ITA 5474/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0437 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 08-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Keywords: Bogus purchase
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B R BASKARAN, ACCOUNTANT MEMBER ITA NO.5474/MUM/2016 ASSESSMENT YEAR : 2009-10 ITO 20(1)(4) MUMBAI VS. DESIGN O FOOTWEAR, K G LEATHER, SHOP NO.3, TEJOOKAYA BLDG., 43 SOPHIA ZUBER ROAD, NAGPADA, MUMBAI 400 008 PAN AAEFD2300G (APPELLANT) RESPONDENT) APPELLANT BY : SHRI T A KHAN RESPONDENT BY : NONE DATE OF HEARING : 19 .0 6 .201 7 DATE OF PRONOUNCEMENT : 19 .0 6 . 201 7 O R D E R THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 07.06.2016, PASSED BY THE LEARNED CIT(A) - 32, MUMB AI, AND IT RELATES TO ASSESSMENT YEAR 2009-10. 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LEARNED CIT(A) HAS DELETED THE ADDITION RELATING TO BOGUS PURCHASES BY ADMITTING A DDITIONAL EVIDENCES IN VIOLATION OF THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THO UGH NOTICE WAS SENT BY REGISTERED POST ON MORE THAN ONE OCCASION. FROM TH E RECORD, I NOTICED THAT ALL THE NOTICES ISSUED BY THE REGISTRY HAVE BEEN RETURNED B ACK BY THE POSTAL DEPARTMENT WITH THE NOTING ADDRESS NOT KNOWN AND IN ONE CASE THE ASSESSEE HAS REFUSED TO ITA NO.5474/MUM/2016 DESIGN O FOOTWEAR 2 ACCEPT THE NOTICE SERVED ON 29.05.2017. HENCE, I P ROCEED TO DISPOSE OF THE APPEAL EX-PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 4. THE LEARNED DR SUBMITTED THAT THE ASSESSING OFFI CER WAS CONSTRAINED TO PASS THE ASSESSMENT ORDER TO THE BEST OF HIS JUDGMENT U/ S. 144 OF THE ACT, SINCE THE ASSESSEE DID NOT FURNISH ANY INFORMATION TO HIM. T HE ASSESSING OFFICER HAD RECEIVED SPECIFIC INFORMATION FROM THE DGIT (INVESTIGATION) THAT THE ASSESSEE HAS INDULGED IN ACCOUNTING ACCOMMODATION BILLS FROM THREE PARTIES A ND THUS ACCOUNTED BOGUS PURCHASES TO THE TUNE OF ` .38.50 LACS. HOWEVER, THE LEARNED CIT(A), WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSING OFFICER, HAS RESTRICTED THE DISALLOWANCE TO 12.5% OF BOGUS PURCHASES BY ACCEPTING THE EXPLAN ATIONS FURNISHED BY THE ASSESSEE, WHICH IS IN VIOLATION OF PROVISIONS OF RU LE 46A OF THE INCOME TAX RULES. ACCORDINGLY, HE PRAYED THAT THE MATTER MAY BE RESTO RED TO THE ASSESSING OFFICER FOR CONSIDERING THE ISSUE AFRESH. 5. HAVING REGARD TO THE SUBMISSIONS MADE BY THE LEA RNED DR AND ALSO CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , I AM OF THE VIEW THAT THERE IS MERIT IN THE SUBMISSIONS MADE BY THE LEARNED DR. A CCORDINGLY, I SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE ALL THE MA TTERS TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THEM AFRESH. THE ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THE DETAILS THAT MAY BE CALLED FOR BY THE ASSESSING OFF ICER. ITA NO.5474/MUM/2016 DESIGN O FOOTWEAR 3 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 19 TH JUNE 2017 SD/- (B R BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 19 TH JUNE, 2017. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI