INDUJA TRADERS P.LTD, MUMBAI V. DCIT CEN CIR 2, MUMBAI

ITA 5773/MUM/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7518 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 26-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 12-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P V DESAI
• Keywords: Search and seizure; Opportunity of being heard
• Section: 133A; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHR I SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER AND ITA NO. 5773/MUM./2014 ( ASSESSMENT YEAR : 20 08 09 ) INDUJA TRADERS PVT. LTD. 203, SIDAT MANSION BUILDING NO.17/17A, 2 ND FLOOR MARINE STREET, NEW MARINE LINES MUMBAI 400 020 AAACI8509D . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 2, MUMBAI . RESPONDENT ITA NO. 5774/MUM./2014 ( ASSESSMENT YEAR : 20 09 10 ) INDUJA TRADERS PVT. LTD. 203, SIDAT MANSION BUILDING NO.17/17A, 2 ND FLOOR MARINE STREET, NEW MARINE LINES MUMBAI 400 020 AAACI8509D . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 2, MUMBAI . RESPONDENT ASSESSEE BY : SHRI P.V. DESAI REVENUE BY : SHRI SAURABH KUMAR RAI DATE OF HEARING 04.04.2018 DATE OF ORDER 11.04.2018 2 INDUJA TRADERS PVT. LTD. O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST TWO SEPARATE ORDERS , BOTH DATED 9 TH JUNE 2014, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 36, MUMBAI, CONFIRMING THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT AMOUNTING TO ` 8,67,358 AND ` 14,61,137 FOR THE ASSESSMENT YEARS 2008 09 AND 2009 10 RESPECTIVELY. 2 . BRIEF FACTS WHICH ARE MORE OR L ESS COMMON IN THESE APPEALS ARE THAT THE ASSESSEE , A COMPANY IS CARRYING ON BUSINESS OF WHOLESALE TRADING IN TEXTILE / FABRIC, ELECTRONIC ITEMS, FOODS AND COMMODITIES AND IS ALSO AN EXPORTER. PURSUANT TO A SEARCH AND SEIZURE OPERATION CARRIED OUT IN CASE O F NILKAMAL GROUP ON 18 TH DECEMBER 2008 AND SURVEY CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE U/S 133A OF THE ACT ON THE VERY SAME DAY , THE ASSESSMENTS FOR THE IMPUGNED ASSESSMENT YEARS WERE RE OPENED U/S 147 OF THE ACT BY THE ASSESSING OFFICER. IN THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND BY THE ASSESSING OFFICER THAT AS PER INCRIMINATING MATERIAL SEIZED / IMPOUNDED AT THE TIME OF SEARCH / SURVEY IT CAME TO THE NOTICE OF THE DEPARTMENT THAT THE ASSES SEE WAS PROVIDING BOGUS BILLS COMMISSION BASIS AND ON EARNING COMMISSION IN THE RANGE OF 0.05% TO 1.5% . A FTER CONFRONTING THE ADVERSE MATERIAL TO THE ASSESSEE , THE ASSESSING OFFICER ULTIMATELY COMPLETED THE ASSESSMENT BY ESTIMATING THE INCOME 3 INDUJA TRADERS PVT. LTD. RECEIVED BY THE ASSESSEE ON PROVIDING ACCOMMODATION BI LLS @ 0.75% WHICH RESULTED IN ADDITION OF ` 45,32,534 IN ASSESSMENT YEAR 2008 09 AND ` 72,77,412 IN ASSESSMENT YEAR 2009 10. AS IT APPEARS FROM THE MATERIAL ON RECORD, THOUGH, THE ASSESSEE CHALLENGED THE ADDITIONS MADE BEFORE THE APPELLATE AUTHORITIES BUT IT WAS UNSUCCESSFUL. ON THE BASIS OF ADDITIONS MADE BY THE ASSESSING OFFICER PROCEEDINGS FOR IMPOSITION OF PENALTY U/S 271(1)(C) W ERE SEPARATELY INITIATED ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE AND ULTIMATELY THE ASSESSING OFFICER PASSED ORDERS IMPOSING PENALTY U/S 271(1)(C) FOR BOTH THE ASSESSMENT YEARS UNDER DISPUTE. THE ASSESSEE CHALLENGED THE IMPOSITION OF PENALTY BY FILING APPEALS BEFORE THE FIRST APPELLATE AUTHORITY. 3 . AS IT APPEARS FROM THE ORDER OF THE LEARNED COMMISS IONER (APPEALS), THE APPEALS WERE FIXED FOR HEARING BEFORE HIM ON TWO DATES I.E., ON 28 TH APRIL 2014 AND 6 TH JUNE 2014. AS OBSERVED BY THE LEARNED COMMISSIONER (APPEALS) IN PARA 4 OF HIS ORDER , SINCE , NO ONE APPEAR ED BEFORE HIM ON THE DATES OF HEARING, HE PROCEEDED TO DISPOSE OFF THE APPEALS EX PARTE CONFIRMED THE PENALTY IMPOSED U/S 271(1)(C) FOR BOTH THE ASSESSMENT YEARS. 4 . THE ONLY SUBMISSION MADE BY THE LEARNED AUTHORISED REPRESENTATIVE BEFORE US IS TO RESTORE THE MATTER BACK TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR ENABLING THE ASSESSEE TO 4 INDUJA TRADERS PVT. LTD. REPRESENT I T S CASE A S THE LEARNED COMMISSIONER (APPEALS) HAD DISPOSED OFF THE APPEALS EX PARTE. 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE, THOUGH, DEFENDED THE ACTIO N OF THE LEARNED COMMISSIONER (APPEALS) IN DISPOSING OF THE APPEALS EX PARTE, HOWEVER, HE HAS NO OBJECTION IF THE APPEALS ARE RESTORED BACK TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR RE ADJUDICATION. 6 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT IS EVIDENT, THE APPEALS WERE FIXED FOR HEARING BEFORE THE LEARNED COMMISSIONER (APPEALS) ON TWO DATES. HOWEVER, IT IS NOT FORTHCOMING FROM THE ORDERS OF THE LEARNED COMMISSIONER (APPEALS) WHETHER NOTICE OF HEARING WERE SERVED ON THE ASSESSEE OR ANY ATTEMPT WAS MADE TO AFFORD A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, CONSIDERING THE LIMITED PR AYER OF THE ASSESSEE TO AFFORD OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE LEARNED COMMISSIONER (APPEALS) , WE ARE INCLINED TO RESTORE THE MATTER TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR RE ADJUDICATION ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FURTHER, WE DIRECT THE ASSESSEE TO RESPOND TO THE NOTICE OF HEARIN G TO BE ISSUED BY THE LEARNED COMMISSIONER (APPEALS) AND APPEAR BEFORE HIM ON THE DATE FIXED TO REPRESENT ITS CASE PROPERLY. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 5 INDUJA TRADERS PVT. LTD. 7 . IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11. 14.2018 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 11.04.201 8 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (ASSTT. REGISTRAR/SR.P.S) ITAT, MUMBAI