DILIPKUMAR CHIMANLAL & CO., MUMBAI V. ITO 19 (1)(4), MUMBAI

ITA 6934/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0926 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATHI
• Assessee Lawyers: KILLI KRISHNA MURTY
• Keywords: Bogus purchase; Search and seizure; Accommodation entries
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO. 6934/MUM/2018 ASSESSMENT YEAR : 2008-09 DILIPKUMAR CHIMANLAL & CO DC-8060/70, BHARAT DIAMOND BOURSE, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI [PAN : AAAFD1236B] VS. ITO-19(1)(4), MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KILLI KRISHNA MURTY, AR REVENUE BY : SHRI R.BHOOPATHI, DR DATE OF HEARING : 1 7 - 12 - 201 9 DATE OF PRONOUNCEMENT : 20 - 12 - 201 9 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-29, MUMBA I, DATED 25-09-2018, FOR THE AY.2008-09. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECOR DS ARE: THE ASSESSEE IS A FIRM, ENGAGED IN THE BUSINESS OF IMPORT/EXPORT OF DIAMONDS. A SEARCH AND SEIZURE ACTION WAS CONDUCTED ON BHANWARLAL JAIN GROUP CONCERNS ON 03-10 - 2013 BY THE DGIT (INV.), MUMBAI. DURING THE COURSE O F SEARCH PROCEEDINGS, IT WAS ESTABLISHED THAT THE GROUP CONCERNS ARE ALL PAPER COMPANIES/FIRMS/PROPRIETORSHI P CONCERN WITH NO REAL BUSINESS ACTIVITIES, OPERATING SO LELY WITH THE PURPOSE OF FACILITATION OF FRAUDULENT FINANCIAL TRA NSACTIONS ITA NO. 6934/MUM/2018 : 2 : WHICH INCLUDES, AMONG OTHERS, PROVIDING OF ACCOMMODA TION ENTRIES IN THE FORM OF UNSECURED LOANS TO INTERESTED PA RTIES, ISSUING A BOGUS SALE BILLS TO VARIOUS PARTIES AND PRO VIDING A BOGUS FRONT TO CONCERNS WHICH DO NOT WANT TO IMPORT DIAMONDS IN THEIR OWN HANDS/BOOKS OF ACCOUNTS. THE ASSESSING OFFICER (AO) ON THE BASIS OF DOCUMENTS FORW ARDED BY THE DGIT (INV.), MUMBAI, HELD THAT DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR UNDER APPEAL, THE ASSESSEE HAS OBTAINED ACCOMMODATION ENTRIES FROM THE FOLLOWING HAWAL A PARTIES: S.NO NAME OF THE PARTY BILL AMOUNT RS. 1 ANKITA EXPORTS 15,43,804 2 MAYUR EXPORTS 22,13,463 3 NAVKAR DIAMONDS 43,71,498 TOTAL RS. 81,28,765 THE AO ESTIMATED GROSS PROFIT (GP) @8% ON ALLEGED BOG US PURCHASES AND MADE ADDITION OF RS.6,50,301/-. AGGRIEVED AGAINST THE ASSESSMENT ORDER DT.16-03-2016 PASSED U/S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 19 61 (HEREIN AFTER REFERRED TO AS THE ACT), THE ASSESSEE F ILED APPEAL BEFORE THE CIT(A). 3. THE CIT(A) PASSED EX-PARTE ORDER, DISMISSING THE APPEAL OF ASSESSEE. AGAINST THE EX-PARTE ORDER OF FIRST APPELLATE AUTHORITY (FAA), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. SHRI KILLI KRISHNA MURTY, APPEARING ON BEHALF OF THE ASSESSEE, SUBMITTED THAT THE CIT(A) HAS CONFIRMED THE ADDITION TO THE EXTENT OF 8% OF THE BOGUS PURCHASES IN ITA NO. 6934/MUM/2018 : 3 : EX-PARTE PROCEEDINGS. THE LD.AR SUBMITTED THAT ASSESSEE HAD FILED APPLICATION PRAYING FOR ADJOURNMENT AND THE SAME WAS NOT CONSIDERED BY THE CIT(A). THE LD.AR CONTENDED THAT THE MATTER MAY BE RESTORED TO THE FILE OF FAA FOR DECIDING THE ISSUE AFRESH, AFTER GIVING A FAIR AND REASONABLE OP PORTUNITY OF HEARING TO THE ASSESSEE. 5. AU CONTRAIRE SHRI R.BHOOPATHI, DR, REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE IMPUGNED ORDER AND PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE. 6. BOTH SIDES HEARD AND THE ORDERS OF THE AUTHORITIES BELOW PERUSED. THE CIT(A) IN THE EX-PARTE PROCEEDINGS, CONFIRMED THE ASSESSMENT ORDER. TAKING INTO CONSIDERATION ENTIRET Y OF FACTS WITHOUT EXPRESSING ANY VIEWS ON THE MERITS OF ADD ITION, I AM OF THE CONSIDERED VIEW THAT IT IS APPROPRIATE TO RESTOR E THE ISSUE BACK TO THE FILE OF CIT(A) FOR DECIDING THE APP EAL OF ASSESSEE AFRESH. NEEDLESS TO MENTION THAT THE ASSESSEE S HALL BE GIVEN A FAIR AND REASONABLE OPPORTUNITY OF HEARIN G, IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY THE 20 TH DAY OF DECEMBER, 2019 SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER /MUMBAI; /DATED : 20-12-2019 TNMM ITA NO. 6934/MUM/2018 : 4 : / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT 3. # $ ( ) / THE CIT(A), MUMBAI 4. # $ / CIT, MUMBAI 5. '()*+ , #-*+#. , / DR, ITAT, MUMBAI 6. )/01 / GUARD FILE # / BY ORDER, ' //TRUE COPY// /# (DY./ASST. REGISTRAR) #-*+#., / ITAT, MUMBAI