TITIAN LABORATORIES PRIVATE LIMITED , MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 10(2), MUMBAI

MA 421/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7101 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 15-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Bogus purchase; Principle of natural justice; Retraction

Judgement Text

1 MA 421/MUM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI SAKTIJIT DEY(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) MA 421/MUM/2018 (ARISING OUT OF I.T.A NO.3768/MUM/2014) (ASSESSMENT YEAR: 2010-11) TITAN LABORATORIES PVT LTD 102, TITAN HOUSE, 60 FEET ROAD, OPP BANK OF MAHARASHTRA, GHATKOPAR (E) MUMBAI-400 077 PAN : AACCT0509Q VS DY.CIT,.CIR.10(2), MUMBAI APPLICANT RESPONDENT APPLICANT BY SHRI NISHIT GANDHI RESPONDENT BY SHRI RAM TIWARI DATE OF HEARING 27-07-2018 DATE OF PRONOUNCEMENT 08-08-2018 O R D E R PER G MANJUNATHA, AM : THIS MISCELLANEOUS APPLICATION IS FILED BY THE AS SESSEE AGAINST THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.3768/MUM/201 8 DATED 28-02- 2018 AND IT PERTAINS TO AY 2010-11. 2. THE LD.AR FOR THE ASSESSEE, SUBMITTED THAT THE I TAT HAS DISPOSED OF ASSESSEES APPEAL IN ITA NO.36768/MUM/2018 WHERE IN INADVERTENT ERRORS HAVE CREPT IN ON ACCOUNT OF NON ADJUDICATION OF CERTAIN GROUNDS TAKEN BY THE ASSESSEE CHALLENGING THE ORDER PASSED BY THE AO IN THE 2 MA 421/MUM/2018 LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE C ASE OF KISHANCHAND CHELLARAM VS CIT (1980) 125 ITR 730 (SC) AND ALSO G ROUNDS 5 TO 7 TAKEN BY THE ASSESSEE CHALLENGING THE ACTION OF THE AO IN NOT ALLOWING VAT PAYMENT ON PURCHASES WHILE MAKING ADDITION TOWA RDS TOTAL ALLEGED BOGUS PURCHASES. THE LD.AR FURTHER SUBMITTED THAT IN GROUND 3 THE ASSESSEE HAD CATEGORICALLY RAISED AN ISSUE STATING THAT IF AT ALL ANY ADDITION IS TO BE MADE, THE SAME SHOULD BE RESTRICT ED TO THE GROSS PROFIT ELEMENT EARNED ON THE ALLEGED BOGUS PURCHASE, BUT N OT ENTIRE PURCHASES. SIMILARLY, THE ITAT HAS NOT CONSIDERED RETRACTION LETTER FILED BY THE ASSESSEE VIDE LETTER DATED 28-02-2013 WHILE DISPOSING OF THE APPEAL, THEREFORE, SUBMITTED THAT THE ORDER PASSED BY THE ITAT REQUIRES RECTIFICATION U/S 254(2) OF THE INCOME-TAX ACT, 196 1 AND ACCORDINGLY, REQUESTED TO RECALL THE ORDER IN THE INTEREST OF JU STICE. 3. ON THE OTHER HAND, THE LD.DR SUBMITTED THAT THE ITAT HAS CONSIDERED ALL GROUNDS TAKEN BY THE ASSESSEE WHICH IS EVIDENT FROM THE FACT THAT THE GROUNDS TAKEN BY THE ASSESSEE IN ITS APPEAL HAS BEEN REPRODUCED IN THE ORDER OF THE TRIBUNAL AND ALSO TH E ITAT HAS DISPOSED OF THE APPEAL CONSIDERING STATEMENT RECORDED DURING THE COURSE OF SURVEY COUPLED WITH REPORT OF INVESTIGATION WING. THEREFORE, THERE IS NO ERROR IN THE ORDER OF THE ITAT WHICH REQUIRES RECTI FICATION U/S 254(2) AND HENCE, THE SAME REQUIRES TO BE REJECTED. 3 MA 421/MUM/2018 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE ITAT HAS DISPOSED OF APPEAL FILED B Y THE ASSESSEE IN ITA NO.3768/MUM/2014 VIDE ITS ORDER DATED 28-02-201 8 AND DISMISSED APPEAL FILED BY THE ASSESSEE AND UPHELD ADDITION MA DE BY THE AO TOWARDS ALLEGED BOGUS PURCHASES FROM SUSPICIOUS / H AWALA DEALERS. THE ASSESSEE CLAIMS THAT THE ITAT HAS NOT ADJUDICAT ED SPECIFIC GROUND TAKEN BY ASSESSEE VIDE GROUND 2,3 & 5 TO 7, WHICH A RE TAKEN TO CHALLENGE THE ORDER PASSED BY THE AO IN THE LIGHT O F DECISION OF HONBLE APEX COURT IN THE CASE OF KISHANCHAND CHELLARAM VS CIT (SUPRA) WHEREIN IT WAS HELD THAT IF ANY THIRD PARTY EVIDENC E IS USED AGAINST THE ASSESSEE TO MAKE ADDITION, THEN SUCH STATEMENT NEED S TO BE GIVEN TO THE ASSESSEE FOR ITS REBUTTAL BEFORE MAKING ANY ADD ITION. THE ASSESSEE HAS TAKEN GROUNDS NO.3, 5 & 7 CHALLENGING ACTION OF THE AO IN NOT CONSIDERING ASSESSEES REQUEST OF SET OFF OF VAT CO MPONENT INVOLVED IN ALLEGED BOGUS PURCHASES WHILE MAKING ADDITION. 5. WE FIND THAT WHILE DISPOSING OF THE APPEAL, THE ITAT HAS INADVERTENTLY NOT ADJUDICATED SPECIFIC GROUND TAKEN BY THE ASSESSEE VIDE GROUND 2, 3 & 5 TO 7 WHICH GO TO QUESTION THE PRINC IPLES OF NATURAL JUSTICE IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT I N THE CASE OF KISHANCHAND CHELLARAM VS CIT (SUPRA). THEREFORE, W E ARE OF THE CONSIDERED VIEW THAT THERE IS A MISTAKE APPARENT ON THE ORDER OF THE 4 MA 421/MUM/2018 ITAT IN NOT ADJUDICATING GROUNDS 2, 3 & 5 TO 7 WHIC H REQUIRES RECTIFICATION U/S 2542) OF THE I.T. ACT, 1961. THEREFORE, WE REC ALL THE ORDER PASSED BY THE ITAT IN ITA NO.3768/MUM/2018 DATED 28-02-2018 A ND RESTORE THE APPEAL IN ITS ORIGINAL NUMBER TO BE HEARD AFRESH. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING IN DUE COURSE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH AUGUST, 2018. SD/- SD/- (SAKTIJIT DEY) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 08 TH AUGUST, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI