J. KUMAR CHIRAG API CONSORTIUM, MUMBAI V. DCIT CC 39, MUMBAI

ITA 960/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100823 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJUKTA CHOWHDARY
• Keywords: Bogus purchase; Search and seizure; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 133A; 147; 132

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.960/MUM/2014 ASSESSMENT YEAR: 2009-10 M/S J KUMAR CHIRAG API CONSORTIUM, 26 VIJAY VILLA, 23, JAWAHAR NAGAR, GOREGAON (WEST), MUBMAI-400062 / VS. DCIT-CC-39, MUMBAI ( ! ' /ASSESSEE) ( # / REVENUE) P .A. NO. AAA AJ4989N ! ' / ASSESSEE BY SHRI SANJUKTA CHOWHDARY # / REVENUE BY SHRI PEEYUSH SONHAR-DR #$ % ' & / DATE OF HEARING : 17/08/2015 % ' & / DATE OF ORDER: 09/09/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 30/12/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, BROADLY THE GROUND RAISED PERTAINS TO PASSING THE E X-PARTY ORDER ON THE PRINCIPLE OF NATURAL JUSTICE ALONG WIT H VARIOUS OTHER GROUNDS. J KUMAR CHIRAG API CONSORTIUM ITA NO.960/MUM/2014 2 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SM T. SANJUKTA CHOWDHARY, LD. COUNSEL FOR THE ASSESSEE AN D SHRI PIYUSH SONHAR, LD. DR. THE CRUX OF ARGUMENT ADVANC ED ON BEHALF OF THE ASSESSEE IS THAT THE IMPUGNED EX-PART Y ORDER WAS PASSED WITHOUT APPRECIATING THE FACT THAT EVEN AT ASSESSMENT STAGE LOT OF RELEVANT DOCUMENTS COULD NO T BE PRODUCED DUE TO BONA FIDE REASONS, THUS, PREJUDICE IS CAUSED TO THE ASSESSEE, CONSEQUENTLY, IT MAY BE REMANDED B ACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APP EALS). ON THE OTHER HAND, THE LD. DR, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT IN SPIT E OF OPPORTUNITY PROVIDED, THE ASSESSEE COULD NOT APPEAR , THEREFORE, AN EX-PARTY ORDER WAS PASSED. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ARGUMENTS ADVANCED FROM BOTH SIDE, WE FIND THAT THE ASSESSEE IS AN ASSOCIATION OF PERSON, CARRYING ON B USINESS AS A CIVIL CONTRACTOR. THE ASSESSEE BELONGS TO J KUMA R INFRA PROJECT GROUP, WHEREIN, SEARCH AND SEIZURE OPERATIO N WAS CARRIED OUT U/S 132 OF THE ACT ON 25/08/2009. A SUR VEY U/S 133A OF THE ACT WAS ALSO CARRIED OUT UPON THE ASSES SEE ON THE SAME DAY AT ITS OFFICE PREMISES. DURING THE COU RSE OF SURVEY, PRINT OUT OF VARIOUS DOCUMENTS LIKE BOOKS O F ACCOUNTS, TRIAL BALANCE, PROFIT & LOSS ACCOUNT, BAL ANCE SHEET, PURCHASE REGISTER, ETC WERE TAKEN OUT FROM THE COMP UTER. AS PER THE REVENUE, THE NET PROFIT WAS SHOWN AT RS.1,76,71,427/-, WHEREAS, AS PER THE PROFIT & LOSS ACCOUNT, J KUMAR CHIRAG API CONSORTIUM ITA NO.960/MUM/2014 3 ATTACHED WITH THE RETURN, THE NET PROFIT WAS SHOWN AT RS.1,66,67,482/-, WHICH WAS RS.10,03,945/- LESS AND REMAIN TO BE UNEXPLAINED. THE STATEMENT OF ONE PERSON MR. I.H. JAIN WAS RECORDED. THE ASSESSMENT WAS FRAMED U/S 143(3) READ WITH SECTION 147 OF THE ACT ON 04/02/2013 AND THE I NCOME WAS ASSESSED AT RS.4,04,38,877/- AFTER MAKING VARIO US ADDITIONS ON ACCOUNT OF BOGUS PURCHASES/SUPPRESSED PROFITS. 2.3. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), VARIOUS GROUNDS WERE TAKEN, HOWEVER, THE FACT REMAINS THAT THE APPEAL WAS FIXED ON 22/11/2013, AN D THUS THE MATTER WAS ADJOURNED TO THE FIRST WEEK OF DECEM BER, 2013. AGAIN THE APPEAL WAS ADJOURNED TO 19/12/2013 BUT ON THAT DATE ALSO NOBODY ATTENDED AND THE ASSESSEE REQ UESTED FOR ADJOURNMENT, WHICH WAS DECLINED. THE LD. COMMI SSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE BY PASSING AN EX-PARTY ORDER, WHICH IS UNDER CHALLE NGE BEFORE THIS TRIBUNAL BY TAKING VARIOUS GROUNDS INCLUDING D ENIAL OF NATURAL JUSTICE. IN VIEW OF THESE FACTS AND WITHOUT GOING INTO MERITS OF THE APPEAL, WE ARE OF THE CONSIDERED OPIN ION THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFORE, WE D IRECT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO ADJ UDICATE THE APPEAL OF THE ASSESSEE AFRESH ON MERIT. THE ASS ESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBER TY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE OFFICE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON 13/10/2015. THE LD. FIRST APPELLATE AUTHORITY IS FREE TO DECIDE THE APPEAL OF THE J KUMAR CHIRAG API CONSORTIUM ITA NO.960/MUM/2014 4 ASSESSEE ON THAT DATE OR ANY OTHER DATE MUTUALLY DE CIDED BY THE OFFICE OF THE LD. COMMISSIONER OF INCOME TAX (A PPEALS). THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES ONLY. IT IS MADE CLEAR THAT IF THE ASSESS EE STILL REMAINS ABSENT ON 13/10/2015, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS FREE TO DECIDE THE APPEAL O N THE BASIS OF MATERIAL AVAILABLE ON RECORD. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 17/08/2015. SD/ - (RAJESH KUMAR) S D/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ MUMBAI; ( DATED : 09/09/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 1' ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1' / CIT(A)- , MUMBAI 5. 3#4 .' , 0 *+& * 5 , $ / DR, ITAT, MUMBAI 6. 6 7$ / GUARD FILE. / BY ORDER, /3+' .' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI