SHRI ARJUN R DEWASI, MUMBAI V. ITO 28(1)(2), MUMBAI

ITA 5551/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8347 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CIRCUMSTANCES OF CASE ON FACTS
• Keywords: Bogus purchase
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM / I .T.A. NO. 5551 / MUM/ 20 1 8 ( / ASSESSMENT YEAR: 200 9 - 10 ) SHRI AR J UN R. DEWASI SHOP NO.01 , DEVICHA PADA, TALOJA MIDC, DIST RAIGAD, NAVI M UMBAI - 410206. / VS. ITO 28(1)(2) MUMBAI. ./ ./ PAN/GIR NO. : AFPPD 4542 N ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 20/02/2020 / DATE OF PRONOUNCEMENT : 20 / 0 4 / 2020 / O R D E R PER SHAMIM YAHYA, AM: THIS APPEAL BY THE ASSESSES AGAINST THE ORDER OF LEARNED CIT - A DATED 23 .1 2 .201 6 PERTAINS TO ASSES SMENT YEAR 2009 - 10 . 2. GROUNDS OF APPEAL READ AS UNDER.: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) HAS ERRED IN PASSING EX - PARTE ORDER WITHOUT GRANTING SUFFICIENT OPPORTUNITY OF B EING HEARD TO THE APPELLANT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, LD. ASSESSING OFFICER HAS ERRED IN REOPENING THE ASSESSMENT U/S 147 OF THE INCOME TAX ACT, 1961, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) HAS ERRED IN MAKING AN ADDITION OF ASSESSEE BY : SHRI GAURAV KABRA (AR) REVENUE BY: SHRI CHAITANYA ANJARIA (DR) ITA. NO.5551 /M/2018 A.Y.2009 - 10 2 RS.18,99,899/ - ON ACCOUNT OF ALLEGED BOGUS PURCHASES, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. ON THE FACTS AND CI RCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. ASSESSING OFFICER HAS ERRED IN TREATING RS.2,00,000/ - AS PROFIT OF BUSINESS, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE TH E SAID GROUND OF APPEAL. 3 . AT THE OUTSET, LD. COUNSEL OF THE ASSESSEE HAS CONTENDED THAT THE ADDITION CONFIRM ED ON ACCOUNT OF BOGUS PURCHASE S HAS BEEN DONE BY THE AO EXPARTE IN THE IMPUGNED ORDER PASSED U/S 144 OF THE I. T. ACT, 1961. LD. COUNSEL CONTEN DED THAT THE ORDER BY THE LD. CIT(A) IS ALSO AN EXPARTE ORDER AND IN THE SAID ORDER LD CIT (A) BASICALLY DISMISSED THE APPEAL FOR NON - PROSECUTION. LD. COUNSEL OF THE ASSESSEE PRAYED THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO PROPER LY CANVASS THE APPEAL. 4. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORD. I FIND THAT IT IS INCUMBENT UPON LD. CIT(A) TO PASS AN ORDER ON THE MERITS . I NOTE THAT IT IS NOT PROPER ON THE PART OF THE LD. CIT(A) TO DISMISS THE AP PEAL FOR NON - PROSECUTION AS ACT MANDAT ES L D. CIT(A) TO PASS AN ORDER ON THE MERITS OF THE APP EAL BEFORE HIM AND NOT DISMISS THE APPEAL FOR NON - PROSECUTION. BE AS IT MAY I REMIT THE ISSUE TO THE FILE OF THE AO TO CONSIDER THE ISSUE AFRESH. LD. CO UNSEL OF THE ASSESSEE HAS UNDERTAKEN TO SUO MOTO APPEAR BEFORE THE AO WITHIN A PERIOD OF TWO MONTHS FROM THE DATE OF THIS ORDER. ITA. NO.5551 /M/2018 A.Y.2009 - 10 3 IN THE RESULT THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 /04 / 2020 S D/ - ( SHAMIM YAHYA ) / ACCOUNTANT MEMBER MUMBAI; DATED 20 / 04 / 2020 V IJAY PAL SINGH/SR. PS / 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