Sanjay Airen HUF, Indore V. ITO 3(1) , Indore

ITA 596/Ind/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4214 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V J BORICHA
• Keywords: Principle of natural justice

Judgement Text

[ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.596/IND/2018 ASSESSMENT YEAR: 2009-10 SHRI SANJAY AIREN HUF 310, SHAGUN ARCADE VIJAY NAGAR SQUARE ABOVE U TURN SHOWROOM INDORE / VS. ITO - 3(1) INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. AAMHS9755F APPELLANT BY SHRI PANKAJ SHAH, A.R. RESPONDENT BY SHRI V.J. BORICHA, SR. DR DATE OF HEARING: 06.03.2019 DATE OF PRONOUNCEMENT: 13.03.2019 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER O F THE CIT(A)-I, INDORE DATED 19.4.2018 PERTAINING TO T HE ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: [ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] 2 2. THE FACTS IN BRIEF ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED ON THE BASIS OF A REPORT BY THE SEBI THAT TH E [ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] 3 ASSESSEE HAD SHIFTED A LOSS OF RS.10,89,467/-. THE A. O. DID NOT ACCEPT EXPLANATION OF THE ASSESSEE AND MADE ADDITION OF RS.11,65,887/- TREATING THE SAME AS LOSS SH IFTED BY THE ASSESSEE. 3. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISS IONS AND THE MATERIAL ON RECORD DISMISSED THE APPEAL. NOW TH E ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 3. GROUND NOS.1 & 2 ARE AGAINST LEGALITY AND VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THERE WAS NO MATERIAL TO SUGGEST THAT INCOME HAS ESCAPED ASSESSMENT. FURTHER, HE SUBMITTED THAT THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY TO REPRESENT HIS CASE. 4. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUBMITTED THAT THE INFORMATION RECEIVED FROM THE SEBI WAS SUFFIC IENT [ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] 4 TO FORM AN OPINION THAT THE INCOME HAS ESCAPED ASSESSMENT. THEREFORE, THE ASSESSMENT WAS VALIDLY REOPENED. THERE IS NO ILLEGALITY INTO THE REOPENING OF THE ASSESSMENT. LD. D.R. FURTHER SUBMITTED THAT FROM THE REPORT, IT IS EVIDENT THAT ASSESSEE WAS GIVEN SUFFICIE NT OPPORTUNITY TO REPRESENT HIS CASE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. SO FAR THE QUESTION OF LEGAL ITY REOPENING IS CONCERNED, THE ASSESSING OFFICER HAS INFORMATION REGARDING ESCAPEMENT OF INCOME IN THE FORM OF THE SEBI REPORT. FURTHER, WE FIND THAT THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) HAS GIVEN DUE OPPORTUNITY. THE ASSESSEE WAS EVEN ALLOWED FILE EXPLANATION DURING THE COURSE OF ASSESSMENT. THEREFORE, BOTH THE GROUNDS I N ASSESSEES APPEAL ARE DEVOID OF MERIT AND THE SAME ARE REJECTED. [ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] 5 6. GROUND NO.3 IS AGAINST MAKING ADDITION IN RESPECT OF ALLEGED PROFIT AND LOSS SHIFTED BY CLIENT CODE MODIF ICATION. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIO NS AS MADE IN THE WRITTEN SYNOPSIS. THE SYNOPSIS OF THE AS SESSEE IS AS UNDER: [ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] 6 [ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] 7 7. PER CONTRA LD. DR OPPOSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND SUPPORTED THE ORDER OF T HE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS. WE FIND FORCE INTO THE CONTENTION THAT THE IMPACT BY MODIFICATION OF CLIE NT CODE IS LESSER THAN 1%. MOREOVER, THE ASSESSING OFFIC ER HAS NOT BROUGHT ANYTHING ON RECORD SUGGESTING THAT THE CL IENT CODE WAS DELIBERATELY MODIFIED TO SHIFT THE PROFIT AND LOSS. UNDER THESE FACTS, WE HEREBY DIRECT THE ASSESSING OF FICER TO DELETE THE ADDITION. THIS GROUND OF ASSESSEES APPEAL I S ALLOWED. 9. THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13 .03. 2019. SD/- (KU L BHARAT) JUDICIAL MEMBER INDORE; DATED : 13/03/2019 PATEL/PS [ITA NO.596/IND/2018] [SHRI SANJAY AIREN HUF, INDORE] 8 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE