ACIT 15(2), MUMBAI V. AMTRADE, MUMBAI

ITA 5593/MUM/2010

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2255 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 09-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 145

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.5593/MUM/2010 ASSESSMENT YEAR: 2007-08 ACIT-15(2), MATRU MANDIR, ROOM NO.113, TARDEO ROAD, MUMBAI-400008 / VS. M/S AMTRADE, 311, SAGAR TECH, PLAZA B, ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI-400072 ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO. AAJFA7407L % & ' $ ( / DATE OF HEARING : 10/12/2015 ' $ ( / DATE OF ORDER: 10/12/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 03/05/2010 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO REJEC TING THE APPLICATION U/S 145 OF THE ACT, APPLIED BY THE ASSE SSING OFFICER IGNORING THE DEFICIENCIES POINTED OUT BY AS SESSING ! / REVENUE BY SHRI ASGHAR ZAIN !'# $ ! / ASSESSEE BY SHRI RAKESH JOSHI M/S AMTRADE ITA NO.5593/MUM/2010 2 OFFICER IN PURCHASE BILLS, FAILURE OF THE ASSESSEE, IN NOT PRODUCING THE ORIGINAL BOOKS OF ACCOUNTS, BILLS AND VOUCHERS, WHICH WAS A LEGAL OBLIGATION TO DO SO AND DISCHARGE D THE BURDEN AND FURTHER SHIFTING THE ENTIRE BURDEN OF TH E ASSESSING OFFICER TO JUSTIFY THE ESTIMATION OF INCOME OVERLOO KING THE NON- COOPERATION OF THE ASSESSEE DURING ASSESSMENT PROCE EDINGS AND FURTHER IN DELETING THE ADDITION MADE BY THE AS SESSING OFFICER. 2. DURING HEARING OF THIS APPEAL, THE LD. DR, SHRI ASGHAR ZAIN, ASSERTED THAT THE ASSESSEE WAS NON-COOPERATIV E BEFORE THE ASSESSING OFFICER AND EVEN IN SPITE OF REPEATED ASKING BY THE ASSESSING OFFICER, DID NOT PRODUCE THE ORIGINAL BOOKS OF ACCOUNTS, BILLS AND VOUCHERS AND THUS, DID NOT DISC HARGE THE BURDEN CASTE UPON THE ASSESSEE. IT WAS FURTHER ARGU ED THAT UNJUSTIFIABLY, THE LD. FIRST APPELLATE AUTHORITY SH IFTED THE ENTIRE BURDEN UPON THE ASSESSING OFFICER TO JUSTIFY THE ESTIMATION OF INCOME OVERLOOKING THE CONDUCT OF THE ASSESSEE, WHO DID NOT UTILIZE THE OPPORTUNITY PROVIDED TO IT. THE LD. DR STRONGLY OBJECTED THE WAY, THE ADDITION WAS DELETED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2.1. ON THE OTHER HAND, SHRI RAKESH JOSHI, LD. COUN SEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE APPEARED BEFO RE THE ASSESSING OFFICER ON 24/12/2009 ALONG WITH BOOKS OF ACCOUNTS AND ORIGINAL BILLS AND BY THE TIME ORDER H AS ALREADY BEEN PASSED BY THE ASSESSING OFFICER. DELETING THE ADDITION BY M/S AMTRADE ITA NO.5593/MUM/2010 3 THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS CL AIMED TO BE JUSTIFIED. OUR ATTENTION WAS INVITED TO THE AFF IDAVIT FILED BY SHRI NILESH KILLAWALA, WHO REPRESENTED THE ASSESSEE BEFORE ASSESSING OFFICER. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. IF THE OBSERVATIO N MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO T HE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MAT ERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RES PECTIVE COUNSEL, IF KEPT IN JUXTAPOSITION AND ANALYZED, WE NOTE THAT, THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS ENGAG ED IN THE BUSINESS OF RESELLER, IMPORTER AND EXPORTER OF PAIN TS, ADHESIVE, MACHINE TOOLS ALLIED PRODUCTS AND FABRIC ETC, DECLA RED INCOME OF RS.11,59,449/- ON 08/11/2007 AND FILED REVISED R ETURN DECLARING TOTAL INCOME AT RS.12,50,784/- ON 13/11/2 007. ON VERIFICATION OF THE PURCHASE BILLS (PHOTOCOPIES, IT WAS NOTICED THAT SOME OF THE BILLS RELATED TO VARIOUS PARTIES W ERE PREPARED IN THE SAME HANDWRITING APPARENTLY BY ONE PERSON ON LY). THE DETAILS OF WHICH HAVE BEEN REPRODUCED IN ASSESSMENT ORDER AT PAGE-1 ONWARDS. THE ASSESSING OFFICER ASKED THE ASS ESSEE TO PRODUCE THE ORIGINAL BILLS, VOUCHERS FOR VERIFICATI ON BUT THE SAME WERE NOT PRODUCED BY THE ASSESSEE, THUS, THE S AME WERE REJECTED U/S 145 OF THE ACT. CONSIDERING THE NATURE OF THE DOCUMENTS, THE SAME WERE SUSPECTED TO BE FORCED/NON - GENUINE, THEREFORE, THE INCOME WAS ESTIMATED AT THE RATE OF 5% OF THE TURNOVER AND CONSEQUENT ADDITION WAS MADE. M/S AMTRADE ITA NO.5593/MUM/2010 4 2.4. ON APPEAL BEFORE THE LD. COMMISSIONER OF INCOM E TAX (APPEALS), SURPRISINGLY, THE LD. FIRST APPELLATE AU THORITY, SHIFTED THE ONUS UPON THE ASSESSING OFFICER, IGNORI NG THE FACTUAL MATRIX RECORDED IN THE ASSESSMENT ORDER BY CONTENDING THAT IF THE ASSESSING OFFICER WAS APPREHENSIVE OF B OOKS OF ACCOUNTS, HE SHOULD HAVE MADE ENQUIRIES BEFORE THE PARTIES. HOWEVER, WE NOTE THAT IN SPITE OF ASKING BY THE ASS ESSING OFFICER, THE ASSESSEE NEITHER THE PRODUCE THE ORIGI NAL BOOKS OF ACCOUNTS, BILLS/VOUCHERS, ETC NOR PRODUCED CONFIRMA TION FROM THE PARTIES AND ULTIMATELY THERE WAS NO OPTION WITH THE ASSESSING OFFICER TO FRAME THE ASSESSMENT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WHILE PASSING THE ORDER HAS NOT ADDRESSED THE OBJECTIONS RAISED BY TH E ASSESSING OFFICER AND IGNORING THE FACTUAL MATRIX GRANTED REL IEF TO THE ASSESSEE. ON QUESTIONING FROM THE BENCH, WHETHER, T HE ASSESSEE PRODUCED ORIGINAL BOOKS OF ACCOUNTS, VOUCH ERS, BILLS, ETC. THE LD. COUNSEL FOR THE ASSESSEE FAIRLY AGREED THAT ORIGINAL DOCUMENTS WERE NOT PRODUCED BY THE ASSESSEE DURING ASSESSMENT PROCEEDINGS AND MERELY INVITED OUR ATTEN TION TO THE AFFIDAVIT DATED 08/06/2012, WHEREIN IN PARA 5, IT HAS BEEN MENTIONED ON 24/12/2009, THE ASSESSEE APPEARED BEFO RE THE ASSESSING OFFICER ALONG WITH ORIGINAL DOCUMENTS BUT BY THE TIME ORDER HAS ALREADY BEEN PASSED. WE NOTE THAT TH E LD. ASSESSING OFFICER PASSED THE ORDER ON 29/12/2009 AN D THE AFFIDAVIT IS MERELY A SELF SERVING DOCUMENT AND MOR E SPECIFICALLY, WHEN IN SPITE OF REPEATEDLY ASKING BY THE ASSESSING OFFICER, THE ASSESSEE DID NOT PRODUCE THE RELEVANT M/S AMTRADE ITA NO.5593/MUM/2010 5 DOCUMENT AS IS CLEARLY OOZING OUT FROM PARA 4.4 AND OTHER PARAS OF THE ASSESSMENT ORDER. WITHOUT GOING INTO M UCH DELIBERATION, IN THE INTEREST OF JUSTICE AND IN VIE W OF THE PRINCIPLE THAT NO PERSON SHOULD BE CONDEMNED UNHEAR D AND FURTHER BY TAKING RECOURSE TO ARTICLE 265 OF THE CO NSTITUTION OF INDIA THAT THE DEPARTMENT IS TO LEVY TO COLLECT AND DUE TAXES AND FURTHER NO GRIEVANCE IS CAUSED TO EITHER SIDE, WE REMAND THIS APPEAL (AS AGREED BY THE LD. COUNSEL FOR THE A SSESSEE ALSO) TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE AFRESH IN ACCORDANCE WITH L AW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM, THUS, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICA L PURPOSES ONLY. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/12/2015 SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % & MUMBAI; * DATED : 10/12/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-. / THE APPELLANT M/S AMTRADE ITA NO.5593/MUM/2010 6 2. /0-. / THE RESPONDENT. 3. 1 1 % 2$ ( , ) / THE CIT, MUMBAI. 4. 1 1 % 2$ / CIT(A)- , MUMBAI 5. 45 /$ ! , 1 ,( ! 6 , % & / DR, ITAT, MUMBAI 6. ' 8& / GUARD FILE. ! / BY ORDER, 04,$ /$ //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI