VIPUL H DOSHI (HUF) PROP. POOJA ENTERPRISES, MUMBAI V. INCOME TAX OFFICER 27(3)(5), MUMBAI

ITA 654/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4549 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KUMAR SINGH
• Assessee Lawyers: RAHUL THAKAR
• Keywords: Opportunity of being heard
• Section: 133(6); 139(1); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER ITA NO. 654 , 655 & 656 / MUM . /2019 ( ASSESSMENT YEAR : 2009 10 , 2010 11 & 2011 12 ) VIPUL H. DOSHI (HUF) PROP. POOJA ENTERPRISES C 1205, KUKREJA PALACE VALLABH BAUG LANE GHATKOPAR (E), MUMBAI 400 075 PAN AACHV0241C . APPELLANT V/S INCOME TAX OFFICER WARD 27(3)(5), MUMBAI . RESPONDENT ASSESSEE BY : SHRI RAHUL THAKAR REVENUE BY : SHRI MANISH KUMAR SINGH DATE OF HEARING 20 .03.2019 DATE OF ORDER 20.03.2019 O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL S BY THE SAME ASSESSEE ARISE OUT OF A COMMON ORDER , DATED 2 ND NOVEMBER 2018, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 25, MUMBAI, FOR THE ASSESSMENT YEARS 2009 10, 2010 11 AND 2011 12. 2 VIPUL H. DOSHI (HUF) 2 . T HE COMMON DISPUTE IN ALL THESE APPEALS IS IN RELATION TO THE ADDITIONS MADE ON ACCOUNT OF NON GENUINE PURCHASES. 3 . BRIEFLY TH E FACTS ARE, F OR THE IMPUGNED ASSESSMENT YEAR S , THE ASSESSEE FILED ITS RETURN S OF INCOME IN REGULAR COURSE UNDER SECTION 139(1) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ). THE RETURNS OF INCOME FILED BY THE ASSESSEE WERE PROCESSED UNDER SECTION 143( 1) OF THE ACT. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM DGIT (INV.), MUMBAI, AND SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, THAT CERTAIN PURCHASES CLAIMED TO HAVE BEEN MADE BY THE ASSESSEE IN THE IMPUGNED ASSESSMENT YEARS ARE NON GENUI NE, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT IN ALL THE ASSESSMENT YEARS UNDER APPEAL. AS OBSERVED BY THE ASSESSING OFFICER, THE INFORMATION AVAILABLE ON RECORD INDICATED THAT CERTAIN PURCHASES MADE BY THE ASSESSEE WERE N ON GENUINE AS THEY WERE EFFECTED FROM PARTIES WHO HAVE BEEN IDENTIFIED AS HAWALA OPERATORS PROVIDING ACCOMMODATION BILLS ONLY. THE DETAILS OF SUCH PURCHASES IN DIFFERENT ASSESSMENT YEARS ARE AS UNDER: 2009 10 ` 12,42,636 2010 11 ` 5,59,990 2011 12 ` 9,56,138 3 VIPUL H. DOSHI (HUF) 4 . AS OBSERVED BY THE ASSESSING OFFICER, THOUGH, THE ASSESSEE WAS TIME AND AGAIN CALLED UPON TO APPEAR AND PRODUCE SUPPORTING DOCUMENTARY EVIDENCES TO PROVE THE GENUINENESS OF PURCHASES MADE, HOWEVER, THE ASSESSEE NEITHER APPEAR ED NOR PRODUCE D THE REQUIRED EVIDENCES. FURTHER, THE INDEPENDENT ENQUIRY CONDUCTED BY THE ASSESSING OFFICER TO ASCERTAIN THE GENUINENESS OF PURCHASES ALSO WAS UNSUCCESSFUL AS THE NOTICES ISSUED UNDER SECTION 133(6) OF THE ACT TO THE SELLING DEALERS RETURNED BACK UN SERVED. S INCE , THE ASSESSEE DID NOT APPEAR IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER PROCEEDED TO COMPLET E THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR S EX PARTE , TO THE BEST OF HIS JUDGMENT , BY INVOKING THE PROVISIONS OF SECTION 144 OF THE ACT. ULTIMATELY , THE ASSESSING OFFICER COMPLETED THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR S UNDER SECTION 144 R/W SECTION 147 OF THE ACT BY DISALLOWING THE NON GENUINE PURCHASES AND ADDING THEM BACK TO THE INCOME OF THE ASSESSEE. AGAINST THE ADDITION S SO MADE, THE ASSESSEE PREFERRED APPEALS BEFORE THE FIRST APPELLATE AUTHORITY. S INCE , BEFORE LEARNED COMMISSIONER (APPEALS) ALSO THE ASSESSEE DID NOT APPEAR , THE APPEALS WERE DECIDED EX PARTE BY UPHOLDING THE ADDITIONS MADE BY TH E ASSESSING OFFICER. 5 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. THE ONLY SUBMISSION MADE BY THE LEARNED AUTHORISED 4 VIPUL H. DOSHI (HUF) REPRESENTATIVE BEFORE US IS, DUE TO C IRCUMSTANCES BEYOND HIS CONTROL LEARNED COUNSEL FOR THE ASSESSEE COULD NOT APPEAR BEFORE THE FIRST APPELLATE AUTHORITY ON THE DATE OF HEARING, HENCE, THE APPEALS WERE DECIDED EX PARTE. HE REQUESTED FOR AN OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE LEARNED COMMISSIONER (APPEALS). THEREFORE, HE SUBMITTED , THE ISSUES RAISED IN THE PRESENT APPEALS MAY BE RESTORED BACK TO THE LEARNED COMMISSIONER (APPEALS) FOR DE NOVO ADJUDICATION. 6 . THOUGH, LEARNED DEPARTMENTAL REPRESENTATIVE JUSTIFIED THE ACTION OF THE LEARNED COMMISSIONER (APPEALS) IN DECIDING THE APPEAL S EX PARTE, HOWEVER, HE HAD N O SERIOUS OBJECTION IF THE ASSESSEE IS GRANTED ONE MORE OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE LEARNED COMMISSIONER (APPEALS). 7 . HAVING CONSIDERED RIVAL SUBMISSIONS, WE HAVE NOTICED THAT THE ASSESSEE HAS DEFAULTED IN APPEARING BEFORE THE DEPARTMENTAL AUTHORITIES IN THE COURSE OF PROCEEDINGS BEFORE THEM. THEREFORE, THE ASSESSMENT ORDERS AS WELL AS FIRST APPEAL ORDERS WERE PASSED EX PARTE. HOWEVER, CONSIDERING THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE THAT GIVEN AN OPPORTUNITY THE ASSESSEE WOULD DILIGENTLY REPRESENT ITS CASE BEFORE LEARNED COMMISSIONER (APPEALS), WE ARE INCLINED TO TAKE A LENIENT VIEW AND RESTORE THE ISSUES RAISED IN THE 5 VIPUL H. DOSHI (HUF) PRESENT APPEALS TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR DE NOVO ADJUDICATION AFTER REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FURTHER, WE DIRECT THE ASSESSEE TO COMPLY WITH THE NOTICE OF HEARING TO BE ISSUED BY THE LEARNED COMMISSIONER (APPEALS) AND REPRESENT ITS CASE IN A PROPER MANNER. WE MAKE IT CLEAR , WE HAVE NOT EXPRESSED ANY O PINION ON THE MERITS OF THE ISSUES RAISED IN THE PRESENT APPEALS. WITH THE AFORESAID OBSERVATIONS, GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.03.2019 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 20.03.2019 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 (SR. PRIVATE SECRETARY) ITAT, MUMBAI