ASST CIT 15(2)(2), MUMBAI V. PRASHANT KANTILA LATHIA, MUMBAI

ITA 901/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9248 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Keywords: Bogus purchase; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO . 901/MUM/2017 (A.Y: 2009 - 10 ) ACIT 15(2)(2) RO OM NO .357, 3 RD FLOOR, AAYAKAR BHAVAN, M. K.ROAD, MUMBAI - 400 020 V . SHRI PRASHANT KANTILAL LATHIA D - 16, PLOT 156, KASHMIR KUNJ, GARODIA NAGAR ABOVE UNION BANK GHATKOPER (E), MUMBAI 400 077 PAN: AARPL 0145 J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DEVENDRA JAIN DEPARTMENT BY : MS. ARJU GARODIA DATE OF HEARING : 25 .09.2017 DATE OF PRONOUNCEMENT : 25 .09.2017 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI DATED 11.11.2016 FOR THE ASSESSMENT YEAR 2009 - 10 . IN ITS APPEAL THE REVENUE CHALLENGED THE ORDER OF THE LD.CIT(A) IN ESTIMATING THE PROFIT AT 25% OF THE PURCHASES WHICH WERE TREATED AS BOGUS PURC HASES BY THE ASSESSING OFFICER. 2. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITS THAT ASSESSEE ALSO PREFERRED AN APPEAL AGAINST ORDER OF THE LD.CIT(A) IN RESTRICTING THE ADDITION/DISALLOWANCE TO 25% OF THE BOGUS PURCHASES BY PASSING AN EXPARTE ORDER. LEARNED COUNSEL FOR THE ASSESS EE SUBMITS THAT 2 ITA NO.901/MUM/2017 (A.Y: 2009 - 10) SHRI PRASHANT KANTILAL LATHIA APPEAL FILED BY THE ASSESSEE IN ITA.NO. 428/MUM/2017 WAS HEARD ON 22.08.2017 BY C BENCH OF THE TRIBUNAL AND IT WAS INDICATED BY THE HON'BLE BENCH THAT SINCE THE LD.CIT(A) PASSED EXPARTE ORDER THE APPEAL OF THE ASSESSEE WILL BE RESTORED TO THE LD .CIT(A) FOR FRESH ADJUDICATION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD. 3. THE LD. DR HAS NO SERIOUS OBJECTION IN SENDING THE CROSS APPEAL OF THE REVENUE TO THE FILE OF THE LD .CIT(A) FOR FRESH ADJUDICATION. 4. HEARD RIVAL SUBMISSIONS AND WE HAVE PERUSED THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES APPEAL IN ITA.NO.428/MUM/2017 DATED 22.08.2017 . THE COORDINATE BENCH REMANDED THE APPEAL TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW OBSERVING AS UNDER: - 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS, ITA NO.428/MUM/2017 IS CONCERNED, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION, DECLARED INCOME OF RS.41,32,938/ - . THE LD, ASSE SSING OFFICER ISSUED NOTICE U/S 147/148 OF THE ACT TO WHICH THE ASSESSEE CONTESTED THE REOPENING. THE ASSESSEE MADE BOGUS PURCHASES FROM VARIOUS PARTIES INCLUDING V.M. UDYOG. THE PARTIES FROM WHOM PURCHASES WERE MADE FOUND TO BE BOGUS AND AS PER THE REVENU E, ONLY BOGUS BILLS WERE ISSUED WITHOUT AFFECTING THE DELIVERY OF GOODS. IDENTICAL IS THE SITUATION IN THE CASE OF SMT. DEEPA PRASHANT LATHIA. THE EVIDENCE ON RECORD CLEARLY SHOWS THAT NEITHER FROM THE ASSESSEE NOR THE LD. ASSESSING OFFICER WERE PRESENT BE FORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). AS IS EVIDENT FROM PARA - 6 OF THE IMPUGNED ORDER, THE ASSESSEE HIMSELF REQUESTED VIDE LETTER DATED 16/04/2015 FOR EARLY DISPOSAL OF THE APPEAL, HOWEVER, ON 06/10/2016, THE ASSESSEE COULD NOT APPEAR. THUS, TH E 3 ITA NO.901/MUM/2017 (A.Y: 2009 - 10) SHRI PRASHANT KANTILAL LATHIA IMPUGNED ORDERS WERE PASSED. CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTANCES NARRATED BEFORE US, WE ARE OF THE VIEW THAT AS PER MANDATE OF ARTICLE 265 OF CONSTITUTION OF INDIA ONLY DUE TAXES HAS TO BE LEVIED/ COLLECTED. SINCE, NO GRIEVANCE IS CAU SED TO EITHER SIDE, WITHOUT GOING INTO THE MERITS OF THE APPEALS, WE DEEM IT APPROPRIATE TO REMAND BOTH THESE APPEALS TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNIT Y OF BEING HEARD. SINCE, THE ASSESSEE COULD NOT APPEAR BEFORE THE FIRST APPELLATE AUTHORITY, FOR THE REASONS KNOWN TO THE ASSESSEE ITSELF, ON THE APPOINTED DATE, BOTH THE ASSESSEES ARE DIRECTED TO APPEAR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) O N A MUTUALLY PRE - DECIDED DATE. THE ASSESSEES ARE DIRECTED TO APPROACH THE OFFICE OF THE FIRST APPELLATE AUTHORITY WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IS AT LIBERTY TO DISPOSE OF THIS APPEAL ACCORDIN GLY EITHER ON THE SAME DAY, IF IT IS CONVENIENT, OR ON A OTHER CONVENINENT DATE. BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. 5. SINCE THE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE LD.CIT(A) THE REVENUES APPEAL ALSO SHOULD GO BACK TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION . THUS, WE RESTORE THE REVENUES APPEAL ALSO TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATI ON IN ACCORDANCE WITH LAW. 6. IN THE RESULT APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRON OUNCED IN THE OPEN COURT ON THE 25 TH SEPTEMBER , 2017. SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 25 / 09/2017 VSSGB , SPS 4 ITA NO.901/MUM/2017 (A.Y: 2009 - 10) SHRI PRASHANT KANTILAL LATHIA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM