ACIT - 19 (2), MUMBAI V. KANIZ FATIMA SAQQAI ABDI, MUMBAI

ITA 6058/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9118 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Section: 143(3); 133(6); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO . 6058 / MUM . /2018 ( ASSESSMENT YEAR : 20 09 10 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 19(2), MUMBAI . APPELLANT V/S KANIZ FATIMA SAQQAI ABDI 3 RD FLOOR, 304, CORNELIAM BUILDING 104, AUGUST KRANTI MARG MUMBAI 400 036 PAN AADPA6492R . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI CHAUDHARY ARUNKUMAR SINGH DATE OF HEARING 0 5 .09.2019 DATE OF ORDER 25.09.2019 O R D E R PER SAKTIJIT DEY, J.M. CAPTIONED APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 14 TH JUNE 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 5, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2009 10. 2 . WHEN THE APPEAL WAS CALLED FOR HEARING, NO O NE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. ACCORDINGLY, I PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE 2 KANIZ FATIMA SAQQAI ABDI LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL ON RECORD. 3 . THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO THE DELETION OF ADDITION MADE ON ACCOUNT OF NON GENUINE PURCHASES. 4 . BRIEF FACTS ARE, THE ASSESSEE WAS AN INDIVIDUAL CARRYING ON BUSINESS IN CIVIL AND PLUMBING WORKS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE FI LED THE RETURN OF INCOME ON 29 TH SEPTEMBER 2009, DECLARING TOTAL INCOME OF ` 24,66,030. ORIGINALLY, THE ASSESSMENT IN CASE OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ACCEPTING THE INCOME RETURNED BY THE ASSESSEE. SUBSEQUENTLY, ON THE BAS IS OF INFORMATION REC EIVED, THAT THE PURCHASES WORTH ` .99, 7 56, CLAIMED TO HAVE BEEN MADE BY THE ASSESSEE IS NOT GENUINE AS THEY ARE IN THE NATURE OF ACCOMMODATION BILLS OBTAINED FROM HAWALA OPERATORS, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SE CTION 147 OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF PURCHASES. FURTHER, THE ASSESSING OFFICER ALSO CONDUCTED INDEPENDENT ENQUIRY BY ISSUING NOTICE UNDER SECTION 133(6) OF THE A CT TO THE SELLING DEALERS. AS OBSERVED BY THE ASSESSING OFFICER, THE ASSESSEE WAS UNABLE TO FURNISH ANY CORROBORATIVE EVIDENCE TO ESTABLISH THE GENUINENESS OF PURCHASES. ACCORDINGLY, HE PROCEEDED TO 3 KANIZ FATIMA SAQQAI ABDI TREAT THE PURCHASES OF ` 99,756, AS NON GENUINE AND ADDED BACK TO THE INCOME OF THE ASSESSEE. AGAINST THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 5 . THE LEARNED COMMISSIONER (APPEALS), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, RESTRICTED THE ADDITION TO 12.5% OF THE NON GENUINE PURCHASES. 6 . HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. IT IS EVIDENT, NOT ONLY THE PRESENT APPEAL BUT T HE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) IS IN THE NAME OF A DEAD PERS ON I.E., LATE MRS. KANIZ FATIMA SAQQAI ABDI. AS PER THE SETTLED LEGAL PRINCIPLE, NO ORDER CAN BE PASSED IN THE NAME OF A DEAD PERSON WITHOUT SUBSTITUTING THE LEGAL HEIR. THEREFORE, WITHOUT BRINGING A PROPER LEGAL HEIR ON RECORD, THE IMPUGNED ORDER PASSED B Y THE LEARNED COMMISSIONER (APPEALS) IS NOT SUSTAINABLE IN THE EYES OF LAW. FOR THE AFORESAID REASON, I HAVE NO HESITATION IN SETTING ASIDE THE IMPUGNED ORDER OF THE LEARNED CO MMISSIONER (APPEALS) AND RESTORING THE ISSUE RAISED IN THE PRESENT APPEAL TO HIS FILE FOR DE NOVO ADJUDICATION AFTER BRINGING ON RECORD THE LEGAL HEIRS OF THE ASSESSEE. WITH THE AFORESAID OBSERVATIONS, THE GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 4 KANIZ FATIMA SAQQAI ABDI 7 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 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 ASSISTANT REGISTRAR ITAT, MUMBAI