ITO 17(2)(5), MUMBAI V. PITAMBARLAL DHANANIA, MUMBAI

MA 33/MUM/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3342 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAYKUMAR SUBRAMANIUM LD
• Assessee Lawyers: KIRIT SANGHVI LD
• Keywords: Bogus purchase

Judgement Text

1 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) M. A. NO. 33/MUM/2021 (ARISING OUT OF ITA NO. 5025/MUM/2018) ( / ASSESSMENT YEAR: 2009-10) ITO - 17(2)(5) R. NO. 123A, FF AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 / VS. PITAMBE RLAL DHANANIA 6, KHADAK STREET NEAR SATKAR HOTEL MASJID BUNDER MUMBAI-400 009 !' ./ ./PAN/GIR NO. AABPD-1236-G ( !% /APPELLANT ) : ( &'!% / RESPONDENT ) REVENUE BY : SHRI VIJAYKUMAR SUBRAMANIUM, LD. DR ASSESSEE BY : SHRI KIRIT SANGHVI, LD. AR / DATE OF HEARING : 11/06/2021 / DATE OF PRONOUNCEMENT : 11/06/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE RE VENUE SEEKS WITHDRAWAL OF TRIBUNAL ORDER DATED 12/09/2019 PASSE D IN REVENUES APPEAL ITA NO.5025/MUM/2018 FOR ASSESSMENT YEAR (AY ) 2009-10. THE BENCH HAS DISMISSED REVENUES APPEAL EX-PARTE QUA T HE ASSESSEE. 2. THE LD. DR SUBMITTED THAT THE ASSESSEE HAD ALSO FILED APPEAL FOR THIS YEAR WHICH WAS DISPOSED-OFF VIDE ITA NO.4866/M UM/2018 VIDE SMC 2 BENCH ORDER DATED 03/09/2019. THE COPY OF THE SAME HAS BEEN PLACED ON RECORD. THE LD. DR SUBMITTED THAT THE SUBJECT MA TTER OF CROSS-APPEALS WAS COMMON I.E. ADDITIONS ON ACCOUNT OF ALLEGED BOGUS PURCHASES. THE LD. AO HAD ESTIMATED THE ADDITIONS @12.5% WHICH WAS RESTRICTED TO 6.25% BY LEARNED FIRST APPELLATE AUTHORITY AGAINST WHICH THE ASSESSEE AS WELL AS REVENUE WAS IN FURTHER APPEAL. THE LD. DR S UBMITTED THAT THE ASSESSEES APPEAL WAS DISPOSED-OFF EARLIER WHEREIN THE MATTER WAS RESTORED BACK TO THE FILE OF LD. AO WITH CERTAIN DI RECTIONS AS ENUMERATED IN PARAS 6 TO 8 OF THE ORDER DATED 03/09/2019. THE LD. DR THEREFORE, SOUGHT SIMILAR DIRECTIONS IN REVENUES APPEAL. THE LD. AR COULD NOT CONTROVERT THE STATED FACTS. 3. UPON CAREFUL CONSIDERATION, WE FIND THAT THE FAC T THAT THERE WAS AN ASSESSEES APPEAL WHICH WAS DISPOSED-OFF EARLIER WA S NOT BROUGHT TO THE NOTICE OF BENCH DURING HEARING OF REVENUES APPEAL WHICH HAS LED TO THE AFORESAID ERROR AS POINTED OUT BY LD. DR. THEREFORE , THE PARAGRAPH NUMBERS 4 & 5 OF THE ORDER DATED 12/09/2019 STAND S UBSTITUTED WITH THE FOLLOWING PARAGRAPHS: - 4. WE FIND THAT THE ASSESSEE WAS ALSO UNDER APPEAL ON THE SAME ISSUE BEFORE SMC BENCH OF THIS TRIBUNAL VIDE I TA NO.4866/MUM/2018 WHICH HAS ALREADY BEEN DISPOSED-OF F BY THE SMC BENCH VIDE ORDER DATED 03/09/2019. UPON PERUSAL OF THE ORDER, WE FIND THAT THE MATTER OF ESTIMATION HAS AL READY BEEN RESTORED BACK TO THE FILE OF LD.AO WITH CERTAIN DIR ECTIONS AS ENUMERATED IN PARAS 6 TO 8 OF THE ORDER DATED 03/09 /2019. SINCE THE MATTER IS ALREADY BEFORE LD. AO IN ASSESSEES A PPEAL, THE REVENUES APPEAL ALSO STAND RESTORED BACK TO THE FI LE OF LD. AO WITH SIMILAR DIRECTIONS. 3 5. THE APPEAL STAND ALLOWED FOR STATISTICAL PURPOSE S. 4. THE APPLICATION STAND ALLOWED IN TERMS OF OUR AB OVE ORDER. ORDER PRONOUNCED ON 11 TH JUNE, 2021. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 11/06/2021 SR.PS, JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. !% / THE APPELLANT 2. &'!% / THE RESPONDENT 3. #'#'. ( ) / THE CIT(A) 4. #'#'. / CIT CONCERNED 5. /0 '&)1 , #' '1 , / DR, ITAT, MUMBAI 6. 0234 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.