ITO WD 19(2)(3), MUMBAI V. MINTU SAYERMAL JAIN, MUMBAI

ITA 6279/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8783 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6279/MUM./2018 ( ASSESSMENT YEAR : 2010 11 ) INCOME TAX OFFICER WARD 19(2)(3), MUMBAI . APPELLANT V/S SHRI MINTU SAYERMAL JAIN 435, PATHE BAPURAO MARG OPP. ISLAMPURA STREET SOMI BUILDING, MUMBAI 400 004 PAN ADCPJ3983C . RESPONDENT REVENUE BY : SMT. JOTHILAKSHMI NAYAK ASSESSEE BY : NONE DATE OF HEARING 0 8 .01.2020 DATE OF ORDER 17.01.2020 O R D E R PER SAKTIJIT DEY. J.M. THE CAPTIONED APPEAL HAS BEEN FILED BY THE REVENUE CHALLENGING THE ORDER DATED 17 TH AUGUST 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 53, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2010 11. 2. BRIEF FACTS ARE, THE ASSESSEE , AN INDIVIDUAL , IS ENGAGED IN THE BUSINESS OF TRADING IN FERROUS AND NON FERROUS METAL. FOR TH E ASSESSMENT YEAR UNDER DISPUTE THE ASSESSEE FILED ITS RETURN OF INCOME 2 SHRI MINTU SAYERMAL JAIN ON 15 TH OCTOBER 2010, DECLARING INCOME OF ` 5,02,670. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS INITIALLY PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). SUBSEQUENTLY, ON THE B ASIS OF INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, THROUGH THE OFFICE OF THE DGIT (INV.), MUMBAI, REVEALING THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODATION BILLS PROVIDED BY HAWALA OPERATOR S , THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF PURCHASES AMOUNTING TO ` 21,92,894, CLAIMED TO HAVE BEEN MADE DURING THE YEAR FROM FIVE PARTIES. IN RESPONSE TO THE QUERY RAISED BY THE ASSESSING OFFICER, THE HUSBAND OF THE ASSESSEE APPEARED FROM TIME TO TIME. AS ALLEGED BY THE ASSESSING OFFICER, THE ASSESSEE FAILED TO FURNISH THE REQUIRED DETAILS CALLED FOR. THUS, ULTIMATELY, THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT BY TREATING THE PURCHASES WORTH ` 21,92,894, AS NON GENUINE. HOWEVER, RELYING UPON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN SIMIT P. SHETH, [2013] 356 ITR 451 (GUJ.), HE RESTRICTED THE ADDITION TO 12.5 % OF THE NON GENUINE PURCHASES. THE ASSESSEE CHALLENGED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY. 3 SHRI MINTU SAYERMAL JAIN 3. BEFORE LEARNED COMMISSIONER (APPEALS), THE ASSESSEE SPECIFICALLY PLEADED THAT DURING THE YEAR UNDER CONSIDERATION, SHE HAS NOT MADE ANY PU RCHASES FROM THE CONCERNED PARTIES. TO SUPPORT SUCH CONTENTION, THE ASSESSEE FURNISHED THE EXTRACT OF PURCHASE REGISTER. ON THE BASIS OF SUBMISSIONS MADE BY THE ASSESSEE AND EVIDENCES FURNISHED, LEARNED COMMISSIONER (APPEALS) DIRECTED THE ASSESSING OFFICER TO VERIFY ASSESSEES CLAIM AND FURNISH HIS REPORT. AS OBSERVED BY LEARNED COMMISSIONER (APPEALS), THE ASSESSING OFFICER DID NOT FURNISH ANY REPORT ON THE SUBMISSIONS MADE AND EVIDENCES FILED BY THE ASSESSEE. THUS, ACCEPTING ASSESSEES CLAIM THAT SHE HAS N OT EFFECTED THE DISPUTED PURCHASES DURING THE YEAR, LEARNED COMMISSIONER (APPEALS) DELETED THE ADDITION OF ` 2,74,112. 4. WHEN THE APPEAL WAS CALLED FOR HEARING, NEITHER THE ASSESSEE NOR ANY ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE DES PITE SERVICE OF NOTICE . EVEN , THERE IS NO APPLICATION FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF HEARING. IN SUCH CIRCUMSTANCES, WE CONSIDER IT APPROPRIATE TO DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESE NTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , BEFORE THE ASSESSING OFFICER THE ASSESSEE DID NOT PRODUCE ANY EVIDENCES FOR WHICH THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT TO 4 SHRI MINTU SAYERMAL JAIN TH E BEST OF HIS JUDGMENT AND ADDED BACK 12.5% OF THE NON GENUINE PURCHASES. SHE SUBMITTED , FOR THE FIRST TIME THE ASSESSEE MADE A CLAIM BEFORE LEARNED COMMISSIONER (APPEALS) THAT SHE HAS NOT MADE THE PURCHASES DURING THE YEAR. MERELY BECAUSE THE ASSESSING OF FICER DID NOT OFFER HIS COMMEN T ON THE SUBMISSIONS MADE BY THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) WITHOUT MAKING ANY ENQUIRY HIMSELF HAS DELETED THE ADDITION , WHICH IS IMPROPER. 6. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE M ATERIAL ON RECORD. IT IS EVIDENT , THOUGH , THE ASSESSING OFFICER HAS TREATED THE PURCHASES AS N ON GENUINE, HOWEVER, ULTIMATELY HE HAS RESTRICTED THE ADDITION TO 12.5% OF SUCH PURCHASES. IT IS ALSO EVIDENT , DURING THE ASSESSMENT PROCEEDINGS, AS PER THE ASSES SING OFFICERS OWN ADMISSION, THE HUSBAND OF THE ASSESSEE HAD APPEARED FROM TIME TO TIME. BE THAT AS IT MAY, IN THE COURSE OF PROCEEDINGS BEFORE LEARNED COMMISSIONER (APPEALS), THE ASSESSEE HAD SPECIFICALLY PLEADED THAT DURING THE YEAR UNDER CONSIDERATION, SHE HAD NOT MADE THE DISPUTED PURCHASES FROM THE CONCERNED PARTI ES AND TO SUPPORT SUCH PLEADING , THE ASSESSEE HAD ALSO FURNISHED THE EXTRACTS OF PURCHASE REGISTER. IT IS FURTHER EVIDENT, THE SUBMISSIONS MADE BY THE ASSESSEE AND EVIDENCES FILED WERE FORWAR DED TO THE ASSESSING OFFICER FOR VERIFICATION AND EXAMINATION OF ASSESSEES CLAIM. AS OBSERVED BY LEARNED COMMISSIONER (APPEALS), THE ASSESSING OFFICER DID NOT FURNISH 5 SHRI MINTU SAYERMAL JAIN ANY REPORT EITHER ACCEPT ING OR REFUTING ASSESSEES CLAIM. IN THE ABSENCE OF ANY ADVERSE REPO RT OF THE ASSESSING OFFICER, LEARNED COMMISSIONER (APPEALS) ULTIMATELY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. IN OUR VIEW, WHEN THE ASSESSEE HAS CLAIMED THAT SHE HAS NOT MADE ANY PURCH ASES FROM THE CONCERNED PARTIES DURING THE YEAR UNDER CONSIDERATION, SUCH CLAIM HAS TO BE VERIFIED BY THE ASSESSING OFFICER. IN FACT, LEARNED COMMISSIONER (APPEALS) HAD ALSO DIRECTED THE ASSESSING OFFICER TO VERIFY ASSESSEES CLAIM. HOWEVER, THE ASSESSING OFFICER HAS CHOSEN TO REMAIN SI LENT ON ASSESSEES CLAIM. IN SUCH CIRCUMSTANCES, IN THE ABSENCE OF ANY ADVERSE REPORT FROM THE ASSESSING OFFICER, THE CLAIM OF THE ASSESSEE THAT SHE HAD NOT EFFECTED THE DISPUTED PURCHASES FROM THE CONCERNED PARTIES HAS TO BE ACCEPTED. THAT BEING THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. ACCORDINGLY, GROUNDS ARE DISMISSED. 7. IN THE RESULT, APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.01.2020 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, D ATED: 17.01.2020 6 SHRI MINTU SAYERMAL JAIN 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