ANIL KUMAR AGARWAL ( PROP OF AMAR TRDG CO), V. ITO WD 14(2)(3),

MA 270/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6996 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2003-2004
• Appeal Filed On: 09-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: R C JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER. M.A.NO.270/MUM/2011 (IN ITA NO.7599/MUM/07) (ASSESSMENT YEAR : 2003-04) SHRI ANIL KUMAR AGARWAL, 111/115, DADI SETH AGIRY LANE, GROUND FLOOR, KALBADEVI ROAD, MUMBAI-400 002 PAN AFUPA8233L VS. INCOME TAX OFFICER 14(2)(3), EARNEST HOUSE, NARIMAN POINT, MUMBAI. APPELLANT. RESPONDENT. APPELLANT BY : SHRI R. C. JAIN. RESPONDENT BY : SHRI P.K.B. MENON. DATE OF HEARING : 29.07.2011. DATE OF PRONOUNCEMENT : O R D E R PER SHRI RAJENDRA SINGH : THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSE SSEE FOR RECALL OF THE ORDER DT.12.11.2009 OF THE TRIBUNAL IN ITA NO.7599/ MUM/07 ON THE GROUND OF SOME APPARENT MISTAKES. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE WAS TRADING IN CLOTH IN THE PROPRIETARY CONCERN NAMELY M/S. AMAR TRADING. THE ASSESSING OFFICER ON M.A.NO.270/MUM/2011 (IN ITA NO.7599/MUM/2007) - 2 - EXAMINATION OF RECORDS NOTED THAT PURCHASES WERE MA DE TO THE TUNE OF RS.2,90,305 WHICH WERE NOT ACCOUNTED FOR BY THE ASS ESSEE. THE ASSESSEE STATED THAT THE PURCHASES RELATED TO M/S. N.K.SAREES, AGRA TO WHOM THE GOODS HAD SUPPLIED. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE EVIDENCE IN RESPECT OF SALES TO N.K. SAREE CENTRE BUT NO SUCH E VIDENCE WAS PRODUCED. IT WAS ALSO OBSERVED BY HIM THAT THE LEARNED A.R. FOR THE ASSESSEE EXPRESSED THE INABILITY TO PROVE THE IDENTITY OF N.K. SAREE CENTR E AND ONLY STATED THAT THE PAYMENTS FOR SUCH PURCHASES HAD BEEN MADE THROUGH BANK WITH WHICH THE ASSESSEE HAD NO CONNECTION. HITESH SAREES ALSO DEN IED EXISTENCE OF ANY SUCH PARTY. SINCE THE IDENTITY OF N.K. SAREE CENTRE WAS NOT ESTABLISHED BY THE ASSESSEE AND THE EXISTENCE OF THE PARTY WAS DENIED BY HITESH SAREES, THE ASSESSING OFFICER HAD TREATED THE SAID PURCHASES A S UNACCOUNTED PURCHASES OF THE ASSESSEE AS THE ORDER HAD BEEN PLACED BY THE AS SESSEE AND BILLS WERE ALSO IN THE NAME OF THE ASSESSEE. THE ADDITION WAS CONFIRM ED BY THE CIT(A). IN FURTHER APPEAL, THE TRIBUNAL OBSERVED THAT THE BILL S HAD BEEN ISSUED IN THE NAME OF ASSESSEE WHO HAD ALSO PLACED ORDERS ON WHICH THE RE WAS NO DISPUTE. THE ASSESSEE HAD THEREFORE TO ESTABLISH THE IDENTITY OF N.K. SAREE CENTRE WHICH HAD NOT BEEN DONE. THE TRIBUNAL, THEREFORE, CONFIRMED THE ADDITION. IN THE MISC. APPLICATION, THE ASSESSEE HAS REITERATED THE SUBMIS SIONS MADE AT THE TIME OF M.A.NO.270/MUM/2011 (IN ITA NO.7599/MUM/2007) - 3 - HEARING OF THE APPEAL. IT WAS SUBMITTED THAT THE B ILLS WERE IN THE NAME OF ASSESSEE BUT PURCHASES WERE MADE BY N.K. SAREE CENT RE. IT WAS ALSO SUBMITTED BY THE LEARNED A.R. THAT SALES BY HITESH SAREES HAD BEEN MADE TO N.K. SAREE CENTRE, AGRA TO WHOM THE GOODS HAD BEEN SENT DIRECT LY. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUB MITTED THAT THE TRIBUNAL HAD PASSED A REASONED ORDER AND THERE WAS NO APPARE NT MISTAKE. 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATERIAL CAREFULLY. WE FIND THAT THE TRIBUNAL HAS PASSED A REASONED AND SP EAKING ORDER. THE TRIBUNAL HAD TAKEN NOTE OF THE FACT THAT PURCHASE ORDER HAD BEEN PLACED BY THE ASSESSEE AND BILLS HAD ALSO BEEN ISSUED IN THE NAME OF ASSES SEE AND THEREFORE THE ASSESSEE WAS REQUIRED TO ACCOUNT THE PURCHASES AND ESTABLISH THE IDENTITY OF N.K. SAREE CENTRE WHICH HAD NOT BEEN DONE. HITESH SAREES HAD DENIED ANY KNOWLEDGE OF N.K. SAREE CENTRE. MERELY BECAUSE THE NAME OF N.K . SAREE CENTRE APPEARED ON THE BILLS, IT COULD NOT BE SAID THAT HITESH SARE ES KNEW N.K.SAREE CENTRE WHEN THE ORDER HAD BEEN PLACED BY THE ASSESSEE AND BILL HAD ALSO BEEN ISSUED IN THE NAME OF THE ASSESSEE. FURTHER ONLY ON THE GROUN D THAT PAYMENT FOR THE SAID PURCHASES HAD BEEN MADE FROM OTHER ACCOUNT, IT CANN OT BE CONCLUDED THAT THE PURCHASES HAD NOT BEEN MADE BY THE ASSESSEE AS IT I S THE ASSESSEE WHO HAD PLACED THE ORDER AND PURCHASE BILLS ALSO WERE ISSUE D IN THE NAME OF THE ASSESSEE. M.A.NO.270/MUM/2011 (IN ITA NO.7599/MUM/2007) - 4 - IN CASE THE PURCHASES ARE NOT ACCOUNTED, OBVIOUSLY THE PAYMENTS WILL ALSO NOT ACCOUNTED. WE DO NOT SEE ANY APPARENT MISTAKE IN TH E ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER A ND THEREFORE MISC. APPLICATION CANNOT BE ACCEPTED. 3.1 THE LEARNED A.R. ALSO SUBMITTED THAT THE TRIBU NAL IN THE ORDER HAD MENTIONED THAT CASH HAD BEEN RECEIVED AGAINST THE C HEQUES OF RS.1,31,000 WHICH WAS NOT CORRECT AS CASH HAD BEEN RECEIVED ONL Y TO THE TUNE OF RS.50,000. WE FIND THAT THE TRIBUNAL HAD NOT HELD THAT CASH HA D BEEN RECEIVED TO THE TUNE OF RS.1,31,000. IT HAD ONLY MENTIONED THAT AGAIN ST CHEQUE RETURNED, CASH HAD BEEN RECEIVED. IN FACT THE ISSUE WHETHER CHEQUES RETURNED OR ANY CASH PAYMENT IN LIEU THEREOF RELATED TO UNACCOUNTED PURCHASES OF RS.2,90,365, HAS BEEN RESTORED BY THE TRIBUNAL TO THE FILE OF ASSESSING O FFICER FOR PASSING A FRESH ORDER AFTER NECESSARY EXAMINATION AND AFTER ALLOWIN G OPPORTUNITY OF HEARING TO THE ASSESSEE. WE, THEREFORE, DO NOT SEE ANY APPARE NT MISTAKE IN THE ORDER OF THE TRIBUNAL. IN FACT IN THE MISC. APPLICATION ALSO TH E ASSESSEE HAS NOT RAISED ANY PLEA REGARDING CASH PAYMENT OF RS.1,31,000. WE, TH EREFORE, DO NOT SEE ANY APPARENT MISTAKE IN THE ORDER ON THE ISSUE WHICH HA S BEEN RESTORED TO THE ASSESSING OFFICER FOR FURTHER VERIFICATION. M.A.NO.270/MUM/2011 (IN ITA NO.7599/MUM/2007) - 5 - 4. IN VIEW OF FOREGOING DISCUSSION, WE SEE NO MERIT IN THE M.A. FILED BY THE ASSESSEE AND THE SAME IS THEREFORE REJECTED. IN THE RESULT THE MISC. APPLICATION STANDS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 10-08-2011. SD/- SD/- (D.K. AGARWAL) (RAJENDRA SINGH) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI, DT.10-08-2011. *GPR TRUE COPY COPY TO : 1. THE ASSESSEE. 2. THE ASSESSING OFFICER. 3. CIT(APPEALS) 4. CIT 5. DEPARTMENTAL REPRESENTATIVE, ITAT, MUMBAI. 6. GUARD FILE. BY ORDER DY./ASST.REGISTRAR, ITAT, MUMBAI