SSJ ENGINEERS AND EXPORTS PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER-13(2)(4), MUMBAI

ITA 5590/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8383 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Keywords: Reopening of assessment; Bogus purchase; Assessment record
• Section: 148

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 5590 /MUM/ 2017 (ASSESSMENT YEAR 20 09 - 10 ) I.T.A. NO. 5591/MUM/2017 (ASSESSMENT YEAR 2010 - 11) I.T.A. NO. 5592/MUM/2017 (ASSESSMENT YEAR 2011 - 12) SSJ ENGINEERS & EXPORTS PVT. LTD. 30, RISHABH MANSION 3, JAWAHAR NAGAR S.V. ROAD GOREGAON WEST MUMBAI - 400 104. PAN : AAJCS9012L V S . INCOME TAX OFFICER - 13(2)(4) MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI BHUPENDRA SHAH DEPARTMENT BY MS. N. HEMALATHA DATE OF HEARING 5 .1 2 . 201 7 DATE OF PRONOUNCEMENT 6 . 12 . 201 7 O R D E R ALL THESE THREE APPEALS HAVE BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDERS PASSED BY LD CIT(A) - 21, MUMBAI AND THEY RELATE TO THE ASSESSMENT YEARS 20 09 - 10 TO 2011 - 12. 2. IN ALL THESE YEARS, THE ASSESSEE IS CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENTS AND THE ADDITIONS RELATING TO BOGUS PURCHASES. 3. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND EXPORT OF CHEMICAL VESSELS. C ONSEQUENT TO THE INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT THAT CERTAIN DEALERS ARE INDULGING IN PROVIDING ACCOMMODATION BILLS WITHOUT ACTUALLY SUPPLYING MATERIALS AND UPON NOTICING THAT THE ASSESSEE HAS PURCHASED GOODS IN THESE THREE YEARS FROM S OME OF SUCH DEALERS, THE ASSESSING OFFICER REOPENED THE ASSESSMENTS OF THESE THREE YEARS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ISSUED NOTICES TO THE SUPPLIERS, BUT ALL OF THEM WERE RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE REMARK NO T KNOWN. THE AO ASKED THE ASSESSEE TO PRODUCE THE SUPPLIERS, BUT THE SSJ ENGINEERS & EXPORTS PVT. LTD. 2 ASSESSEE FAILED TO PRODUCE THEM. THE ASSESSEE FURNISHED COPIES OF BILLS AND PAYMENT PROOFS AND CONTENDED THAT THE PURCHASES WERE GENUINE. NOT SATISFIED WITH THE CONTENTIONS OF THE ASS ESSEE, THE AO TOOK THE VIEW THAT A PORTION OF PURCHASES COULD BE CONSIDERED AS UNEXPLAINED. ACCORDINGLY, BY FOLLOWING THE DECISION RENDERED BY THE AHMEDABAD BENCH OF ITAT IN THE CASE OF VIJAY PROTEINS (55 TTJ 76), THE AO DISALLOWED 25% OF THE VALUE OF BOG US PURCHASES. THE LD CIT(A) ALSO CONFIRMED THE SAME. 4. THE LD A.R SUBMITTED THAT THE LD CIT(A) HAS PASSED ORDER, EX - PARTE, WITHOUT CONSIDERING THE PAPER BOOK FILED BY THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEES AUTHORISED REPRESENTATIVE DID APPEAR BEFORE LD CIT(A) AND FURNISHED THE RELEVANT DETAILS. BEFORE LD CIT(A), THE ASSESSEE HAD RAISED A LEGAL GROUND, VIZ., THAT THE AO HAD PROCEEDED TO COMPLETE THE ASSESSMENT WITHOUT FURNISHING THE REASONS FOR REOPENING AND IT HAS BEEN ADJUDICATED AGAINST THE ASSESSEE WITHOUT PROVIDING OPPORTUNITY. HE SUBMITTED THAT THE LD CIT(A) HAS FAILED TO CONSIDER PROPERLY VARIOUS EVIDENCES FURNISHED BY THE ASSESSEE. 5. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE LD CIT(A) HAS SOUGHT A REPORT FROM THE ASSESSING OFF ICER ON THE LEGAL ISSUE OF NON - FURNISHING OF REASONS AND THE AO HAS REPLIED, AFTER VERIFICATION OF RECORDS, THAT THE REASONS WERE FURNISHED ALONG WITH THE NOTICE U/S 148 OF THE ACT ISSUED TO THE ASSESSEE. ACCORDINGLY THE LD CIT(A) DID NOT FIND ANY MERIT ON THE LEGAL ISSUE AND ACCORDINGLY DISMISSED THE SAME. 6. THE LD A.R SUBMITTED THAT THE ASSESSEE HAS NOT RECEIVED THE REASONS FOR REOPENING AND SUBMITTED THAT THE BENCH, ON THE LAST OCCASION, ASKED THE REVENUE TO FURNISH ASSESSMENT RECORDS. 7. I H EARD THE PARTIES AND PERUSED THE RECORD. I NOTICE THAT THE LD CIT(A) HAS PASSED EX - PARTE ORDERS IN ALL THE THREE YEARS UNDER CONSIDERATION. THE CASE OF THE ASSESSEE IS THAT THE FIRST APPELLATE AUTHORITY HAS PASSED THE ORDERS WITHOUT PROPERLY CONSIDERING THE PAPER BOOK FILED BY THE ASSESSEE. WITH REGARD SSJ ENGINEERS & EXPORTS PVT. LTD. 3 TO THE LEGAL ISSUE, IT WAS SUBMITTED THAT THE REPORT OF THE AO WAS NOT CONFRONTED TO THE ASSESSEE. UNDER THESE SET OF FACTS, I AM OF THE VIEW THAT ALL THE GROUNDS URGED IN THESE THREE APPEALS REQUIRE FRES H EXAMINATION AT THE END OF THE LD CIT(A). ACCORDINGLY I SET ASIDE THE ORDERS PASSED BY LD CIT(A) IN ALL THE THREE YEARS UNDER CONSIDERATION AND RESTORE THE SAME TO HIS FILE FOR ADJUDICATING ALL THE GROUNDS AFRESH. I ALSO DIRECT THE ASSESSEE TO CO - OPERAT E WITH THE LD CIT(A) FOR EXPEDITIOUS DISPOSAL OF THE APPEALS. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 06 .1 2 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 6 / 1 2 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBA I 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSTT. REGISTRAR /SENIOR PS ) PS ITAT, MUMBAI