MOHAMEDI KANCHWALA, MUMBAI V. ITO 20(2)(2), MUMBAI

MA 167/MUM/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0574 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 15-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH GUPTA
• Keywords: Bogus purchase; Set aside
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) D ' BENCH , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , HON'BLE ACCOUNTANT MEMBER MA.NO. 167 / MUM /2020 [ARISING OUT OF ITA.NO. 1249 /MUM/201 6 (A.Y: 2010 - 11) ] MOHAME DI KACHWALA 732, B - WING, ANJIRWADI FRANCIS TRASITS CAMP MAZGAON, MUMBAI - 4000 10 PAN: ABJPK1291P V. INCOME TAX OFFICER 20(2)(2) R.NO. 212, PIRAMAL CHAMBERS LALBAUG, MUMBAI 400 012 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH GUPTA DEPARTME NT BY : SHREEKALA PARDESHI DATE OF HEARING : 08.01.2021 DATE OF PRONOUNCEMENT : 03 .02 .202 1 O R D E R PER C.N. PRASAD (JM) 1. THROUGH THIS MISCELLANEOUS APPLICATION ASSESSEE REQUESTED FOR RECALL OF THE EXPARTE ORDER PASSED BY THE TRIBUNAL IN ITA.NO. 12 49/MUM/2016 DATED 28.11.2019. IT IS SUBMITTED THAT THE TRIBUNAL RESTORED THE APPEAL OF THE REVENUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH ON A MISTAKEN IMPRESSION THAT THE MA.NO. 167/MUM/2020 MOHAMEDI KACHWALA 2 ASSESSEE APPEAL IN ITA.NO. 676/ MUM /2016 DATED 23.03.2018 WAS RESTORED TO THE FILE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH. 2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE ASSESSEE IN ITA.NO. 676/ MUM /2016 WAS DISPOSED OFF BY THE TRIBUNAL ON 23.03.2018 RESTRICTING THE ADDITION IN RESPECT OF SUPPRESSION OF SALES BY ESTIMATING THE GROSS PROFIT @12.79% AT .18,07,279/ - . IT WAS ALSO FURTHER BROUGHT TO OUR NOTICE BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE SET ASIDE AND RESTORED BY THE TRIBUNAL TO THE FILE ASSESSING OFFICER IS IN RESPECT OF DISALLOWANCE U/S. 40(A)(IA) OF T HE ACT BEING TEMPO AND LABOUR CHARGES. THEREFORE, IT IS SUBMITTED THAT THE TRIBUNAL UNDER A MISTAKEN IMPRESSION THAT THE ASSESSEE APPEAL WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER , THE REVENUES APPEAL WAS ALSO RESTORED WHICH IS A MISTAKE APPARENT ON RECORD AND T HEREFORE REQUESTED THAT THE ORDER OF THE TRIBUNAL IN ITA.NO. 1249/MUM/2016 DATED 28.11.2019 BE RECALLED FOR FRESH HEARING. 3. ON HEARING BOTH SIDES AND PERUSING THE ORDER OF THE TRIBUNAL , WE NOTICED THAT THE TRIBUNAL IN ITA.NO.676/MUM/2016 DATE D 23.03.2018 IN FACT ESTIMATED THE GROSS PROFIT ON SUPPRESSION OF SALES @12.79%. WE ALSO FURTHER NOTICED THAT AT THE TIME OF HEARING LD.DR INADVERTENTLY MA.NO. 167/MUM/2020 MOHAMEDI KACHWALA 3 STATED THAT THE APPEAL FILED BY THE ASSESSEE IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH. WE ALSO NOTICED THAT THE TRIBUNAL IN ASSESSEES APPEAL RESTORED THE ISSUE OF DISALLOWANCE U/S. 40(A)(IA) OF THE ACT FOR FRESH ADJUDICATION. IN THE REVENUES APPEAL THE ONLY ISSUE WAS ESTIMATION OF GROSS PROFIT ON BOGUS PURCHASES AT 5% BY THE LD.CIT(A). THEREFORE, RESTORING THE APPEAL OF THE REVENUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IS A MISTAKE APPARENT ON RECORD . THUS ALLOWING THE MISCELLANEOUS APPLICATION OF THE ASSESSEE WE RECALL OUR ORDER IN ITA.NO. 1249/ MUM /2016 DATED 28.11.2019 FOR ADJUDICATION . WE DIRECT THE REGISTRY TO TAKE THE APPEAL IN ITA.NO.1249/MUM/2016 ON RECORD AND POST THE SAME FOR HEARING IN DUE COURSE. 4. IN THE RESU LT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 03 .02.2021 AS PER RULE 34(4) OF ITAT RULES BY PLACING THE PRONOUNCEMENT LIST IN THE NOTICE BOARD SD/ - SD/ - ( S. RIFAUR RAHMAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 03 /02/2021 GIRIDHAR, SR.PS MA.NO. 167/MUM/2020 MOHAMEDI KACHWALA 4 COPY OF THE OR DER 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