ASSISTANT COMMISSIONER OF INCOME TAX-19(3), MUMBAI V. VINOO K. NAIK, MUMBAI

MA 204/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4094 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KUMAR PADMAPANI BORA
• Keywords: Bogus purchase; Audit objection; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 204/MUM/2019 (ITA NO. 4878/MUM/2017) ASSESSMENT YEAR: 2009 - 10 ACIT - 19(3), MATRUMANDIR, 2 ND FLOOR, R. NO. 206, TARDEO ROAD, MUMBAI - 400007 VS. SHREE VINOO K. NAIK 236 - BLUE ROASE INDUSTRIAL ESTATE, 2 ND FLOOR, WESTERN EXPRESS HIGHWAY, BORIVALI (E), MUMBAI - 400086 PAN NO. AACPN2962L APPELLANT RESPONDENT REVENUE BY : MR. KUMAR PADMAPANI BORA , DR ASSESSEE BY : MR. JITENDRA JAIN, AR DATE OF HEARING : 15/11/2019 DATE OF PRONOUNCEMENT : 31/01/2020 ORDER PER N.K. PRADHAN, A.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECALL OF THE ORDER DATED 24.08.2018 PASSED BY THE ITAT H BENCH MUMBAI (ITA NO. 4878 /MUM /2017 ) FOR THE ASSESSMENT YEAR (AY) 2009 - 10. 2. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE ( DR) SUBMITS THAT THE TAX EFFECT IN THE PRESENT CASE IS RS.14,72,312/ - WHICH IS BELOW THE PRESCRIBED MONETARY LIMIT AS ENVISAGED IN CBDTS CIRCULAR NO. 3/2018 DATED 11.07.2018 AND SUBSEQUENT CIRCULAR DATED 20.08.2018. FURTHER, IT IS EXPLAINED BY HIM THAT SHREE VINOO K. NAIK MA NO. 204/MUM/2019 2 AS THE MATTER INVOLVES INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA, THIS CASE FALLS IN PARA 10 OF THE CIRCULAR NO. 3/2018 DATED 11.07.2018 AND SUBSEQUENT AMENDMENT TO PARA 10 IN CIRCULAR DATED 20.08.2018. THUS IT IS STATED B Y HIM THAT THE IMPUGNED ORDER BE RECALLED. 3. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE EXCEPTIONS ARE, INTER ALIA , WITH REGARD TO WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORC EMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI) . IT IS THUS STATED BY HIM THAT THE PRESENT CASE DOES NOT FALL IN THE ABOVE EXCEPTION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD . PARA 10 OF THE CIRCULAR NO. 3 OF 2018 ISSUED BY CBDT PROVIDES THAT ADVERSE JUDGMENT RELATING TO THE ISSUES ENUMERATED IN THE SAID PARA SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED I N PARA 3 THEREOF OR THERE IS NO TAX EFFECT. FURTHER, CBDT VIDE LETTER [F NO. 279/MISC. 142/2007 - ITJ(PT)] DATED 20.08.2018 AMENDED PARA 10 OF THE CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 AS UNDER : 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHO ULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR SHREE VINOO K. NAIK MA NO. 204/MUM/2019 3 B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES , OR C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR D) WHERE ADDITION RELATES TO UN DISCLOSED FOREIGN INCOME/UNDISCLOSED F OREIGN ASSETS (INCLUDING FINANCIAL ASSETS)/UNDISCLOSED FOREIGN BANK ACCOUNT. E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DG GI). F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE DEPARTMENT AND IS PENDING IN THE COURT. 4.1 IN THE INSTANT CASE, ON RECEIPT OF INFORMATION FROM THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA THAT THE ASSESSEE HAD OBTAINED BOGUS PURCHASE BILLS AMO UNTING TO RS.50,11,703/ - FROM 5 ENTRY PROVIDERS AND THEREAFTER, EXAMINING THE CASE, THE ASSESSING OFFICER (AO) HAS PASSED AN ORDER U/S 143(3) R.W.S. 147 DATED 20.03.2015, THUS MAKING AN ADDITION OF RS.50,11,703/ - . THUS THE PRESENT CASE FALLS IN PARA 10(E ) OF THE ABOVE CIRCULAR. THEREFORE, WE RECALL THE ORDER DATED 24.08.2018 PASSED IN THE CASE OF THE ASSESSEE AND DIRECT THE REGISTRY TO FIX THE CASE FOR HEARING BEFORE A REGULAR BENCH. SHREE VINOO K. NAIK MA NO. 204/MUM/2019 4 5. IN THE RESULT, THIS MA IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/01/2020. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 31/01/2020 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI