Assistant Commissioner Of Income Tax, Circle-2, Jaipur V. Shri Abhay Chordia, Jaipur

ITA 803/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4162 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 29-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Onus to prove

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH JESK LH0 KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C. SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA- @ ITA NO. 803/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2013-14 THE ACIT, CIRCLE-2, JAIPUR. CUKE VS. SHRI ABHAY CHORDIA, PROP. M/S ASHOK JEWELS, 4459, K.G.B. KA RASTA, JOHARI BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADLPC 7128 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT CO NO. 19/JP/2019 (ARISING OUT OF ITA NO. 803/JP/2019) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2013-14 SHRI ABHAY CHORDIA, PROP. M/S ASHOK JEWELS, 4459, K.G.B. KA RASTA, JOHARI BAZAR, JAIPUR. CUKE VS. THE ACIT, CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADLPC 7128 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : MISS ANURADHA (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 20/08/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/08/2019 VKNS'K@ ORDER ITA NO. 803/JP/2019 &CO NO. 19/JP/2019 ACIT VS. SHRI ABHAY CHORDIA 2 PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE DEPARTMENT AND CROSS OBJECTION B Y THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 05.03 .2019 OF LD. CIT(A)- I, JAIPUR FOR THE ASSESSMENT YEAR 2013-14. AS PER T HE GROUNDS OF APPEAL, THE TAX EFFECT CALCULATED BY THE AO IN RESP ECT OF THE RELIEF GRANTED BY THE LD. CIT (APPEALS) WHICH HAS BEEN CHA LLENGED IN THE PRESENT APPEAL IS LESS THAN RS. 50,00,000/-. 2. WE HAVE HEARD THE LD. D/R AND CONSIDERED THE REL EVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT THE TAX EFF ECT IN THIS APPEAL IS NOT EXCEEDING THE MONETARY LIMIT AS REVISED BY THE CBDT VIDE CIRCULAR DATED 08.08.2019 FOR THE PURPOSE OF FILING OF APPEA L BY THE DEPARTMENT BEFORE THE INCOME TAX APPELLATE TRIBUNAL FROM RS. 2 0,00,000/- TO RS. 50,00,000/-. FOR READY REFERENCE, WE REPRODUCE THE CBDT CIRCULAR NO. 17 OF 2019 DATED 08.08.2019 AS UNDER :- FURTHER ENHANCEMENT OF MONETARY LIMITS FOR FILING O F APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLA TE TRIBUNAL, HIGH COURTS AND SLPS/APPEALS BEFORE SUPRE ME COURT - AMENDMENT TO CIRCULAR 3 OF 2018 - MEASURES FOR REDUCING LITIGATION. CIRCULAR NO. 3/2018 DATED 11TH JULY 2018 HAS BEEN REPLACED BY CIRCULAR NO. 17/2019 DATED 8TH AUGUST 2 019 TO ENHANCE MONETARY LIMITS FOR FILING OF APPEALS BY TH E ITA NO. 803/JP/2019 &CO NO. 19/JP/2019 ACIT VS. SHRI ABHAY CHORDIA 3 DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL, HI GH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT FOR REDUCING LITIGATION. APPEALS/SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (RS.) (PREVIOUS LIMIT) MONETARY LIMIT (RS.) (REVISED LIMIT) BEFORE APPELLATE TRIBUNAL 20,00,000 50,00,000 BEFORE HIGH COURT 50,00,000 1,00,00,000 BEFORE SUPREME COURT 1,00,00,000 2,00,00,000 THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFEC T SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARI SE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS I N WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISS UES EXCEEDS THE MONETARY LIMIT. NO APPEAL SHALL BE FILE D IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT. FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMI T. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY. ITA NO. 803/JP/2019 &CO NO. 19/JP/2019 ACIT VS. SHRI ABHAY CHORDIA 4 ACCORDINGLY, THE APPEAL OF THE DEPARTMENT IS NOT MA INTAINABLE BEING MONETARY LIMIT IS LESS THAN/NOT EXCEEDING RS. 50,00 ,000/-. 3. THE DEPARTMENT IS AT LIBERTY TO FILE THE MISCELL ANEOUS APPLICATION IN CASE THE TAX EFFECT IN THIS APPEAL IS FOUND TO B E MORE THEN RS. 50,00,000/- OR THE CASE FALLS IN ANY OF THE EXCEPTI ONS OF THE CIRCULAR. 4. THE ASSESSEE IN THE C.O. HAS RAISED FOLLOWING GR OUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND UNDER THE LAW THE IMPUGNED ORDER PASSED BY THE LEARNED CI T(A) AND THE RELEVANT ASSESSMENT ORDER PASSED BY THE AO ARE NOT MAINTAINABLE MAINLY BECAUSE OF THE FACTS THAT NEITH ER THE LEARNED CIT(A) NOR THE AO PROVIDED A COPY OF THE STATEMENTS OF SHRI RAJENDRA KUMAR JAIN & OTHERS GROUP, MUMBAI ON THE B ASIS OF THOSE STATEMENTS PURCHASES MADE BY THE ASSESSEE FRO M ABOVE SAID PARTIES ARE HELD AS BOGUS NOR WAS THE ASSESSEE PROVIDED OPPORTUNITY TO CROSS EXAMINE THE RELATED PERSONS OF SELLING PARTIES. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE AO FAI LED TO DISCHARGE THE BURDEN OF PROOF OF NOT ACCEPTING THE PURCHASE O F RS. 5,46,24591/- MADE BY ASSESSEE FROM FOUR DIFFERENT P ARTIES AS GENUINE WHICH BURDEN OF PROOF SQUARELY LAY UPON THE AO PARTICULARLY BECAUSE THE ASSESSEE HAD FILED BEFORE THE AO ALL PURCHASE BILLS, THE PAYMENT OF WHICH WERE MADE BY A CCOUNT PAYEE CHEQUES, AND THE SELLER ALSO HAD CONFIRMED TH E TRANSACTIONS, AND THERE WAS NO EVIDENCE TO SHOW THA T AMOUNT WAS RECYCLED BACK TO ASSESSEE, MOREOVER SALES OUT O F PURCHASES MADE FROM SELLER WAS ALSO ACCEPTED BY THE DEPARTMEN T. 3. THAT THE LEARNED CIT(A) GROSSLY ERRED IN NOT APP LYING/FOLLOWING LEADING JUDGMENT OF HONBLE SUPREME COURT IN THE CA SE OF ITA NO. 803/JP/2019 &CO NO. 19/JP/2019 ACIT VS. SHRI ABHAY CHORDIA 5 PRINCIPAL CIT, SURAT VS. TEJUA ROHIT KUMAR KAPADIA (2018) 256 TAXMAN PAGE 325 WHEREIN THE HONBLE SUPREME COURT I NTER ALIA HELD IN ASSESSEES FAVOUR THAT AS ASSESSEE HAD SHOW N ALL PURCHASE BILLS, THE PAYMENT OF WHICH WERE MADE BY ACCOUNT PA YEE CHEQUES AND THE SELLERS HAD ALSO CONFIRMED THE TRANSACTIONS AND THERE WAS NO EVIDENCE TO SHOW THAT AMOUNT WAS RECYCLED BACK T O ASSESSEE AND MOREOVER AMOUNT OF SALES (IN APPELLANTS CASE B EFORE THE HONBLE TRIBUNAL THE SALES ARE EXPORT SALES) OUT OF PURCHASES MADE FROM ABOVE MENTIONED FOUR PARTIES WAS ACCEPTED BY THE AO. 4.THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AM END AND/OR SUBSTITUTE ONE OR MORE GROUNDS OF APPEAL AS AND WHE N NECESSARY 5. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE, HOW EVER WE FIND THAT THE ASSESSEE IS CHALLENGING THE IMPUGNED ORDER S PASSED BY THE AO AS WELL AS THE LD. CIT(A) WITHOUT SPECIFYING THE GR IEVANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A). SINCE , THE LD. CIT(A) HAS GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE BY DELET ING THE ENTIRE ADDITION MADE BY THE AO EXCEPT SMALL AMOUNT BY ADOPTING GP @ 10% AS AGAINST 43.33% TAKEN BY THE AO. WE FIND THAT EVEN T HE GP DECLARED BY THE ASSESSEE IN THE PRECEDING AND SUBSEQUENT ASSESS MENT YEARS SINCE 2011-12 TO 2014-15 IS VERY HIGH AND THEREFORE, ADOP TION OF GP RATE 10% BY THE LD. CIT(A) IS QUITE REASONABLE AND PROPE R. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THE CROSS OBJECTION FILED BY THE ASSESS EE. ITA NO. 803/JP/2019 &CO NO. 19/JP/2019 ACIT VS. SHRI ABHAY CHORDIA 6 IN THE RESULT, THE DEPARTMENT APPEAL AND CROSS OBJE CTION OF ASSESSEE APPEAL ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/08/2019 SD/- SD/- JESK LH0 KEKZ FOT; IKY JKO (RAMESH. C. SHARMA) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/08/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ACIT, CIRCLE-2, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SHRI ABHAY CHODIA, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 803/JP/2019 & CO NO. 19/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR