SHRI. A SURENDRA KUMAR GAIADA, CHENNAI V. ACIT CENTRAL CIRCLE 3(2), CHENNAI

MA 27/CHNY/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9213 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 29-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRINIRANJANI

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C(SMC) BENCH : CHENNAI . . . , ! . '#'$ , % !& ' [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ] M.P.NO.27/CHNY/2019 ( ./I.T.A. NO. 536/CHNY/2018) / ASSESSMENT YEAR : 2014-2015. SHRI. A. SURENDRA KUMAR GALADA, NO.10, NAGESWARAN ROAD, T. NAGAR, CHENNAI 600 017. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3(2) CHENNAI. [PAN AASPS 3816Q] (PETITIONER) ( ()*+ /RESPONDENT) / APPELLANT BY : MS. S. SRINIRANJANI, ADVOCATE /RESPONDENT BY : NONE /DATE OF HEARING : 29-03-2019 ! /DATE OF PRONOUNCEMENT : 29-03-2019 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ASSESSEE THROUGH THIS MISCELLANEOUS PETITION STATES THAT THIS TRIBUNAL WHILE DISPOSING OF THE APPEAL HAD ERRONEO USLY CONSIDERED SHRI. SURENDRA JAIN, BUSINESS PARTNER OF ONE SHRI. RAJENDRA JAIN, WHOSE STATEMENT WAS RELIED ON BY THE LOWER AUTHORIT IES, FOR DISBELIEVING THE PURCHASES EFFECTED BY THE ASSESSEE FROM M/S. AVI EXPORTS, SURAT, WAS THE SAME AS THE ASSESSEE SHRI. A. SURENDRA KUMAR GALADA. MP NO.27/CHNY/2019. :- 2 -: 2. LD. COUNSEL SUBMITTED THAT THIS TRIBUNAL HAD PROCEE DED ON A FOOTING THAT ASSESSEE HAD NOT SOUGHT A CROSS EXA MINATION OF SHRI. RAJENDRA JAIN, WHOSE STATEMENT WAS RELIED ON BY THE LOWER AUTHORITIES. ACCORDING TO HER, THIS WAS NOT CORRECT AND ASSESSEE WAS REFUSED AN OPPORTUNITY TO CROSS EXAMINE THE SAID PERSON. NOBO DY APPEARED ON BEHALF OF THE DEPARTMENT. 3. WE HAVE HEARD THE CONTENTIONS OF LD. AUTHORISED REPRESENTATIVE. SUBMISSION OF THE ASSESSEE IS TH AT THIS TRIBUNAL HAD DISBELIEVED TWO PURCHASES CLAIMED BY THE ASSESSEE FROM M/S. AVI EXPORTS, SURAT, BASED ON A PRESUMPTION THAT SHRI. S URENDRA JAIN MENTIONED BY SHRI. RAJENDRA JAIN WHOSE STATEMENT WA S RECORDED BY THE REVENUE ON 05.12.2013, WAS SAME AS THE ASSESS EE SHRI. SURENDRA KUMAR GALADA, DESPITE ASSESSEES REQUEST F OR CROSS- EXAMING SHRI. RAJENDA JAIN, BEING DENIED BY THE LO WER AUTHORITIES. WHAT WAS HELD BY THIS TRIBUNAL AT PARA 4 OF ITS DEC ISION IS REPRODUCED HEREUNDER:- 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. TO A QUESTION FRO M THE BENCH, LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT ASSESSEE WAS PROVIDED THE STATEMENT RECORDED FROM SHRI. RAJENDRA JAIN AND ASSESSEE HAD NEVER REQUESTED A CR OSS EXAMINATION OF SHRI. RAJENDRA JAIN, BEFORE THE LOWE R AUTHORITIES. WE FIND FROM THE STATEMENT GIVEN BY S HRI. RAJENDRA JAIN ON 05.12.2013 THAT NAME OF M/S. AVI E XPORTS APPEARS AT MANY PLACES. IN HIS ANSWER TO QUESTION N O.7, THE SAID SHRI. RAJENDRA JAIN HAD CLEARLY EXPLAINED THE EMAIL CORRESPONDENCE WITH M/S. AVI EXPORTS AT SL.NO.186 T O 215. THESE CLEARLY INDICATED THAT THE CONSIGNMENTS WERE NOT MP NO.27/CHNY/2019. :- 3 -: MEANT TO M/S. AVI EXPORTS BUT SOME OTHER IMPORTER. THAT APART, IN AN ANSWER TO QUESTION NO.9, SAID SHRI. R AJENDRA JAIN FURTHER STATED THAT SHRI. SURENDRA JAIN WHO WA S THE AUTHORIZED PERSON FOR M/S. AVI EXPORTS, WAS HIS BUS INESS PARTNER. THE STATEMENT RECORDED FROM SHRI. RAJENDR A JAIN, IN OUR OPINION, CLEARLY SHOWS THAT THE PURCHASES CL AIMED BY THE ASSESSEE WERE BOGUS. ASSESSEE COULD NOT PRODUC E ANY RECORD FOR TRANSPORTATION OF THE MATERIALS OR FOR THE ACTUAL PHYSICAL RECEIPT THEREOF. JUST BECAUSE PAYMENTS WER E EFFECTED THROUGH BANKING CHANNEL OR INVOICES WERE R AISED BY ACCOMMODATION PROVIDER WOULD NOT MEAN THAT THE CLAI M HAD TO BE ACCEPTED. NO DOUBT, THE LD. AUTHORISED REPRE SENTATIVE HAS PLACED RELIANCE ON THE JUDGMENT OF HONBLE APE X COURT IN THE CASE OF TEJUA ROHITKUMAR KAPADIA, (SUPRA). H OWEVER IN THE SAID JUDGMENT, THEIR LORDSHIPS HAS CLEARLY M ENTIONED THAT THE SELLER HAD CONFIRMED THE TRANSACTION. ON THE OTHER HAND, IN THE CASE BEFORE US, THERE IS NO SUCH CONFI RMATION FROM THE SELLER. IN THE CIRCUMSTANCES, WE DO NOT FI ND ANY REASON TO INTERFERE WITH THE ORDERS OF THE LOWER AU THORITIES. THIS TRIBUNAL HAD FOUND THAT SHRI. SURENDRA JAIN WHO WAS THE BUSINESS PARTNER OF SHRI. RAJENDRA JAIN WAS ALSO T HE AUTHORIZED PERSON OF ONE M/S. AVI EXPORTS. THE TRIBUNAL NEVER STATED THAT SHRI. SURENDRA JAIN WAS THE SAME AS THE ASSESSEE SHRI. S URENDRA KUMAR GALADA. THE TRIBUNAL CAME TO A CONCLUSION THAT PUR CHASES CLAIMED BY THE ASSESSEE FROM M/S. AVI EXPORTS WERE BOGUS, ACC EPTING THE STATEMENT RECORDED FROM SHRI. RAJENDRA JAIN. HOWEVE R, WE FIND THAT ASSESSEE HAD RAISED A GROUND THAT IT WAS NEVER GIVE N AN OPPORTUNITY TO CROSS-EXAMINE SHRI. RAJENDRA JAIN. SAID GROUND, APP EARING AS GROUND NUMBER 1.2 WAS NOT DISPOSED OFF BY THE TRIBUNAL. THE QUESTION REGARDING OPPORTUNITY OF CROSS-EXAMINATION NOT BEIN G GIVEN, IN OUR OPINION GOES TO THE ROOT OF THE ISSUE SINCE THE DI SALLOWANCE WAS BASED ON THE STATEMENT RECORDED BY THE REVENUE FROM SHRI. RAJENDRA JAIN. MP NO.27/CHNY/2019. :- 4 -: WE ALSO FIND THAT PARA 6.5 OF THE ASSESSMENT ORDER DOES MENTION THE ISSUE OF CROSS-EXAMINATION SOUGHT BY THE ASSESSEE W HICH WAS DENIED BY THE LD. ASSESSING OFFICER. WE ARE THEREFORE OF THE OPINION THAT THERE INDEED IS A MISTAKE IN THE ORDER OF THE TRIB UNAL, APPARENT ON RECORD, WHICH REQUIRE CORRECTION U/S.254(2) OF THE ACT. WE THEREFORE RECALL THE ORDER OF THE TRIBUNAL IN THE IMPUGNED AP PEAL. REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING IN DUE COURS E, AFTER NOTICE TO BOTH PARTIES. 4. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 29 TH DAY OF MARCH, 2019, AT CHENNAI. SD/- SD/- ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( ! . '#'$ ) (ABRAHAM P. GEORGE) % / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 29 TH MARCH, 2019. KV &' ()*) / COPY TO: 1 . / APPELLANT 3. +,' / CIT(A) 5. )-. / / DR 2. / RESPONDENT 4. + / CIT 6. .01 / GF