AJAY NARAYAN BHOIR, BHIWANDI V. Assistant COMMISSIONER OF INCOME TAX CIRCLE 1, KALYAN, KALYAN

MA 552/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8894 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 16-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Opportunity of being heard; Reassessment proceedings; Set aside
• Section: 133(6); 143(1); 195

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 552/MUM/2018 (ITA NO. 5052/MUM/2016) ASSESSMENT YEAR: 2011 - 12 SHRI AJAY NARAYAN BHOIR, VISHNU COMPOUND, ASSBIBI, KALYAN ROAD, BHIWANDI - 421302 VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE - 1, KALYAN. PAN NO. AATPB1608A APPELLANT RESPONDENT ASSESSEE BY : MR. SUNIL MAKHIJA, AR REVENUE BY : MR. CHAUDHARY ARUN KUMAR SINGH , DR DATE OF HEARING : 05/04 /2019 DATE OF PRONOUNCEMENT : 03/07/2019 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECTIFICATION OF THE ORDER DATED 25.04.2018 OF THE TRIBUNAL IN ITA NO. 5052 /MUM/201 6 F OR THE ASSESSMENT YEAR (AY) 2011 - 1 2 . IN PART - I ,HERE - IN - BELOW, WE MENTION THE CONTENTIONS OF THE LD. COUNSEL OF THE APPLICANT, IN PART - II, THE SUBMISSIONS OF THE LD. DR A ND IN PART - III, THE REASONS FOR OUR DECISION. I 2. THE CONTENTIONS OF THE LD. COUNSEL FOLLOW THE WRITTEN SUBMISSION DATED 26.09.2017 FILED BY THE APPLICANT BEFORE THE TRIBUNAL. THEREFORE, WE REFER BELOW THE SAID WRITTEN SUBMISSION. SHRI AJAY NARAYAN BHOIR MA NO. 552/MUM/2018 2 IT IS STATED THAT DURING THE COURSE OF HEARING OF APPEAL BEFORE THE TRIBUNAL, THE ISSUE OF THE PARTIES NOT BEING AVAILABLE AS NOTICES ISSUED TO THEM WERE RETURNED UN - SERVED BY THE POSTAL AUTHORITIES HAD COME UP WHEN THE AUTHORIZED REPRESENTATIVE (AR) HAD C ONTENDED THAT AS IN RESPECT OF THE TRANSACTIONS UNDER DISPUTE WERE OTHERWISE SUPPORTED BY PRIMARY EVIDENCE OF ASSESSEE POSSESSING BILLS ISSUED BY THE SAID PARTIES CONTAINING NAME, ADDRESS, REGISTRATION NO. UNDER MAHARASHTRA VAT ACT, PAYMENT HAVING BEEN MAD E BY PAYEE ACCOUNT CHEQUE AND PERIOD OF MORE THAN 3 YEARS HAVE BEEN ELAPSED, RELYING ON THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF DIAGNOSTIC V. ITO & ORS 334 ITR 111, THE CLAIM OF THE ASSESSEE ON THAT ACCOUNT CANNO T BE DISCARDED AS NON - EXI STENT. IT IS ALSO STATED THAT THOSE PERSONS ARE THE WITNESS OF REVENUE BECAUSE BASICALLY H IS VALIDLY COMPLETED ASSESSMENT EVEN IF IT IS U/S 143(1) OF THE ACT, HAS BEEN REOPENED AND ADDITION MADE ON THE BASIS OF THEIR STATEMENTS AND THEREFORE, THE ONUS IS UPON THE REVENUE TO MAKE AVAILABLE THOSE PERSONS FOR CROSS - EXAMINATION. IT IS THUS SUBMITTED THAT : ON THE ONE HAND THE HONBLE BENCH HAS ACCEPTED THE CONTENTION OF MY AUTHORIZED REPRESENTATIVE THAT ADDITION MADE BY ASSESSING OFFICER WITHOUT HAVING BEE N MADE HAWALA DEALERS AVAILABLE TO ME FOR CROSS EXAMINATION COULD NOT HAVE BEEN MADE IN THE LIGHT OF VARIOUS JUDGEMENTS QUOTED BUT ON OTHER HAND BY CASTING A DUTY UPON ME TO PROVIDE LATEST ADDRESS OF THE SAID HAWALA DEALER AT WHICH NOTICES CAN BE ISSUED AN D SERVED BY THE ASSESSING OFFICER BEING CONTRADICTORY THE DIRECTIONS GIVEN TO THE EFFECT THAT I SHOULD FILE BEFORE THE ASSESSING OFFICER THE RECENT ADDRESS OF ABOVE PARTIES HAVE ASKED ME TO DO SOMETHING WHICH IS NOT PRACTICALLY POSS IBLE AND SINCE IT IS CLE AR FROM THE RECORDS (ASSESSME NT ORDER) AS ALSO CIT(A) ORDER. SHRI AJAY NARAYAN BHOIR MA NO. 552/MUM/2018 3 FINALLY, IT IS SUBMITTED THAT THE ABOVE PARTICULAR FINDING MAY BE DELETED SO THAT THE PROVISIONS OF LAW AS HELD BY VARIOUS JUDICIAL FORUMS INCLUDING APEX COURT ARE COMPLIED WITH. II 3. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. HE SUBMITS THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT. III 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. THE 2 ND GROUND OF APPEAL FILED BY THE ASSESSEE IN ITA NO. 5052/MUM/2016 FOR THE IMPUGNED ASSESSMENT YEAR READS AS UNDER: 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE LD. ASSESSING OFFICERS STAND FOR NOT PROVIDING THE DOCUMENTARY EVIDENCE AND CROSS EXAMINATION SO CALLED HAWALA DEALERS OR BOGUS SUPPLIER OF GOODS WHICH H AD BEEN SOUGHT BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FURTHER FAA ALSO IGNORING THE APPELLANT PLEA AND REQUEST TO PROVIDE DOCUMENTARY EVIDENCE AND CROSS EXAMINATION OF THE SAID DEALER IN THE LIGHT OF ABOVE FACT DECLARED ASSESSMENT ORD ER BAD IN LAW VOID AB INITIO AND ILLEGAL AND ORDER OF THE FIRST APPELLATE AUTHORITY LIABLE TO QUASH FOR THE ASSESSMENT YEAR 2011 - 12. 4.1 IN THE INSTANT CASE, THE ASSESSING OFFICER (AO) HAD RECEIVED INFORMATION FROM THE SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA THAT THE ASSESSEE HAD OBTAINED ACCOMMODATION ENTRY AMOUNTING TO RS.25,74,568/ - FROM 7 ENTRY PROVIDERS. DURING THE COURSE OF REASSESSMENT PROCEEDINGS, THE AO ISSUED NOTICES U/S 133(6) SHRI AJAY NARAYAN BHOIR MA NO. 552/MUM/2018 4 TO THE SAID PARTIES ASKING THEM TO PRODUCE THE DETAILS OF TRA NSACTIONS THEY HAD WITH THE ASSESSEE. BUT THOSE NOTICES WERE RETURNED UN - SERVED BY THE POSTAL AUTHORITIES. THEREFORE, THE AO TREATED THE PURCHASES MADE FROM THE ABOVE PARTIES AS UNSUBSTANTIATED AND MADE AN ADDITION OF RS.25,74,768/ - . IN APPEAL, THE LD. CIT (A) RESTRICTED THE DISALLOWANCE TO RS.6,43,642/ - [@ 25% OF RS.25,74,768/ - ]. AS MENTIONED HEREINABOVE AT PARA 4, IN THE 2 ND GROUND RAISED BY THE ASSESSEE IN ITA NO. 5052/MUM/2016 FOR THE IMPUGNED ASSESSMENT YEAR, THE APPLICANT HAD SOUGHT CROSS - EXAMINATION OF THE SAID PARTIES. THUS HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD AND RELYING ON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN STATE OF KERALA V. K.T. SHADULI GROCERY DEALER AIR 1977 SC 1627, ITO V. M. PIRAI C HOODI (2012) 20 TAXMANN.COM 733 (SC) AND THE HONBLE BOMBAY HIGH COURT IN OM VINYLS P. LTD. V. ITO [WRIT PETITION (L) NO. 3114 OF 2014], WE SET ASIDE THE ORDER OF THE LD. CIT(A) ON THE ABOVE ISSUE AND RESTORED THE MATTER TO THE FILE OF THE AO TO MAKE A DE NOVO ORDER AFTER EXAMINING THE PARTIES AND ALLOWING CROSS - EXAMINATION TO THE ASSESSEE. AS THE ASSESSEE HAS MADE PURCHASES FROM THE SAID PARTIES AMOUNTING TO RS.25,74,568/ - HAVING TIN, WE OBSERVED THAT IT IS THE DUTY OF THE ASSESSEE TO FILE BEFORE THE AO TH E RECENT ADDRESS OF THE SAID PARTIES. WE DIRECTED THE AO TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. WE ALSO DIRECTED THE AO TO GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE FINALIZING THE FRESH ORDER. IN FACT, NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLICANT WANTS IS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THE TRIBUNAL IS A CREATURE OF THE SHRI AJAY NARAYAN BHOIR MA NO. 552/MUM/2018 5 STATUTE. THE TRIBUNAL CANNOT REVIEW ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 1273] THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT AS HELD IN CIT V. GLOBE TRANSPORT CORPN. [1992] 195 ITR 311 (RAJ) (HC), CIT V. ROOP NARAIN SARDAR MAL [2004] 267 ITR 601 (RAJ) (HC), CIT V. DEVILAL SONI [2004] 271 ITR 566 (RAJ) (HC), JAINARAIN JEEVRAJ V. CIT [1980] 121 ITR 358 (RAJ.) (HC), PRAJATANTRA PRACHAR SAMITI V. CIT [2003] 264 ITR 160 (ORISSA) (HC), CIT V. JAGABANDHU ROUL [1984] 145 ITR 153 (ORISSA) (HC), CIT & ANR. V. ITAT & ANR. [1992] 196 ITR 640 (ORISSA) (HC), SHAW WALLACE & CO. LTD. V. ITAT & OTHERS [1999] 240 ITR 579 (CAL) (HC), CIT V. SUMAN TEA & PLYWOOD INDUSTRIES PVT. LTD. [1997] 226 ITR 34 (CAL) (HC), ITO V. ITAT & ANR. [1998] 229 ITR 651 (PAT.) ( HC), CIT & ANR. V. ITAT & ANR. [1994] 206 ITR 126 (AP) (HC), ACIT V. C. N. ANANTHRAM [2004] 266 ITR 470 (KAR) (HC). 5. IN VIEW OF THE FACTUAL SCENARIO AND POSITION OF LAW DELINEATED HEREINBEFORE, THE PRESENT MA, BEING DEVOID OF MERIT, IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/07/2019. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 03/07/2019 RAHUL SHARMA, SR. P.S. SHRI AJAY NARAYAN BHOIR MA NO. 552/MUM/2018 6 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// (SR. PRIVATE SECRETARY) ITAT, MUMBAI