INDUSTRIAL EXPORTS, V. ASST CIR 15(2),

MA 87/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9154 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2007-2008
• Appeal Filed On: 13-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

MA NO.87 OF 2012 INDUSTRIAL EXPORTS MUMBAI PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL 'I' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A.NO.87/MUM/2012 (ARISING OUT OF ITA NO.4135/MUM/2011) (ASSESSMENT YEAR: 2007-08) M/S INDUSTRIAL EXPORTS, FLAT NO.22, 2 ND FLOOR, SAYED VILLA, 12 REYNOLD ROAD, AGRIPADA, MUMBAI 400008 PAN: AAAFI 6935 Q VS. ACIT 15(2), 113, MATRU MANDIR, TARDEO ROAD, MUMBAI 400007 (APPELLANT) (RESPONDENT) ASSESSEE BY: NONE DEPARTMENT BY: MS. NEERAJA PRADHAN, DR DATE OF HEARING: 14/09/2012 DATE OF PRONOUNCEMENT: 26/09/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS IS AN ASSESSEES APPLICATION ARISING OUT OF I TA NO.4135/MUM/2011 DATED 31.10.2011. ASSESSEE DID NOT APPEAR WHEN THE CASE WAS POSTED ORIGINALLY ON 5/6/2012, TH EN 29/6/2012 AND WHEN THE NOTICE WAS SENT THROUGH RPAD POSTING T HE CASE ON 14/9/2012, THE NOTICE HAS RETURNED UNSERVED. THEREF ORE, WE HAVE NO OPTION THAN TO DECIDE THE ISSUE EX-PARTE ASSESSEE AFTER HEARING THE LEARNED DR. 2. THE SUBMISSIONS OF ASSESSEE IN PARA-3 ARE AS UNDER: 3. IT IS HUMBLY SUBMITTED THAT THE ORDER OF THE TR IBUNAL DT.31.1 0.20 11 REQUIRES RECTIFICATION IN THE INTER EST OF JUSTICE ON ACCOUNT OF THE FOLLOWING INADVERTENT APPARENT ER RORS MADE BY THE HON'BLE TRIBUNAL: MA NO.87 OF 2012 INDUSTRIAL EXPORTS MUMBAI PAGE 2 OF 4 A. TRIBUNAL OBSERVATION THAT EXACT CORRELATION BETWEEN PURCHASES AND SALES CANNOT BE VERIFIED IS AN APPARE NT MISTAKE AS IT OVERLOOKS THE EVIDENCE IN THE APPELLA NT'S COMPILATION WHICH WAS SPECIFICALLY POINTED OUT IN T HE COURSE OF THE APPEAL PARTICULARLY THE LINKAGE BETWEEN THE PURCHASE INVOICES RAISED BY SHRADDHA SABURI MERCHANTS LTD ON THE APPELLANT, THE EXPORT INVOICES RAISED BY THE APPELLANT ON ITS OVERSEAS PURCHASERS, BILL OF LADING AND THE INWARD REMITTANC ES RECEIVED BY THE APPELLANT FOR EACH INVOICE FROM THE OVERSEAS PURCHASERS. B. WHILE SETTING ASIDE THE IMPUGNED ORDER BACK TO THE FILE OF AO, THE TRIBUNAL DIRECTED RE-EXAMINATION OF THE EVIDENCE TO SEE IF IT SATISFIES THE CRITERIA SPECIF IED THROUGH PARAS 10 TO 14 OF THE ORDER FOR HOLDING THE PURCHAS ES AS GENUINE. PARA 15 ON PAGE 8 CONCLUDES WITH THE FOLLO WING OBSERVATION: 'WE ALSO MAKE IT CLEAR THAT IN CASE THE SAID PURCHA SES ARE NOT ESTABLISHED TO BE GENUINE BY THE ASSESSEE T HEN UNLESS THE SAID GOODS ARE AVAILABLE IN THE CLOSING STOCK IT CANNOT BE DENIED THAT THE ENTIRE PURCHASE ARE TO BE DISBELIEVED WHEN THE EXPORT SALES ARE ACCEPTED. THE N ASPECT OF ESTIMATION OF INCOME WOULD COME INTO PLAY ONLY WHEN THE PURCHASES ARE FOUND TO BE BOGUS.' IT IS RESPECTFULLY SUBMITTED THAT THE ABOVE OBSERVA TIONS CONTAIN THE FOLLOWING APPARENT ERRORS: (I) WHEN THE DISPUTE RELATES TO 'SAID PURCHASES' THERE SHOULD BE NO QUESTION OF 'ENTIRE PURCHASES' TO BE DISBELIEVED AND INTENDED REFERENCE WAS TO 'SAID PURCHASES' ONLY AND NOT TO 'ENTIRE PURCHASES' . (II) IT IS HUMBLY SUBMITTED THAT THERE IS A TYPOGRAPHICAL ERROR IN THE ABOVE OBSERVATIONS AND THE CONCLUDING PORTION THEREOF SHOULD READ: 'ENTIRE PURCHASES ARE TO BE BELIEVED (RATHER THAN 'DISBELIEVED '), WHEN THE EXPORT SALES ARE ACCEPTED', BECAUSE IT IS ONLY IF THE AFORESAID OBSERVATIONS ARE SO READ THAT THEY ARE INTERNALLY CONSISTENT AND NOT INTERNALLY CONTRADICTORY. IT IS THUS RESPECTFULLY SUBMITTED THAT CONTENTS OF PARA 15 ON PAGE 8 OF THE ORDER CONTAIN A MISTAKE APPARENT F ROM THE RECORD. THE APPELLANTS SUBMIT THAT THE TRIBUNAL MAY MA NO.87 OF 2012 INDUSTRIAL EXPORTS MUMBAI PAGE 3 OF 4 BE PLEASED TO SUITABLY AMEND ITS SAID ORDER TO RECT IFY THE SAID MISTAKE WHICH IS APPARENT FROM THE RECORD. C. THE HON'BLE ITAT HAS INADVERTENTLY OMITTED TO DE AL WITH THE APPELLANT'S ARGUMENT, BASED UPON THE DECIS ION OF THE TRIBUNAL IN THE CASE OF BANSAL STEEL ROLLING MILLS (92 TAXMANN 314), THAT EVEN IF IT WAS ASSUMED, WHIL E DENYING, THAT THE PURCHASES FROM SHRADDHA SABURI MERCHANTS LTD. WERE NOT PROVED, SINCE THE APPELLANT 'S EXPORTS WERE ADMITTED AND ACCEPTED, THERE COULD BE NO DISALLOWANCE OF PURCHASES AS THERE COULD, IN FACT, BE NO EXPORTS WITHOUT PURCHASES. THE APPELLANT RESPECTFUL LY SUBMITS THAT THOUGH THIS ARGUMENT AND DECISION IS SPECIFICALLY REFERRED TO IN PARA 7 ON PAGE 4 OF THE HON'BLE ITAT'S- ORDER THE SAME HAS INADVERTENTLY NOT BEEN CONSIDERED. 3. WITH REFERENCE TO THE ISSUE IN 3(A) THERE IS NO NEE D TO ADJUDICATE ANYTHING ON THIS AS IT IS ONLY AN OBSERV ATION FOR THE REASONS STATED IN PARAS 13 & 14 OF THE ORDER. THERE FORE, THERE IS NO NEED TO CONSIDER THE ABOVE REQUEST OF ASSESSEE. WIT H REFERENCE TO THE ITEM NO. 3(B) THE EXACT ORDER OF THE ITAT HAS A LREADY BEEN EXTRACTED IN THE APPLICATION. THE ISSUE UNDER DISCU SSION IS WITH REFERENCE TO SAID PURCHASES ONLY AND THEREFORE WH EN THE WORD USED ENTIRE PURCHASE (AND NOT ENTIRE PURCHASES AS ST ATED BY ASSESSEE) THE REFERENCE IS ONLY TO SAID PURCHASES. THEREFORE, THERE IS NO NEED TO MODIFY THE ORDER AS REQUESTED IN 3B(I). WITH REF ERENCE TO 3B(II) ASSESSEE WANTS THAT THE TYPOGRAPHICAL ERRORS TO BE CORRECTED. AO IS DIRECTED TO READ THE WORD AS BELIEVED RATHER THAN DISBELIEVED . TO THAT EXTENT ASSESSEES REQUEST IS ACCEPTED. 4. WITH REFERENCE TO ITEM 3(C), ASSESSEES ARGUMENTS B ASED ON THE DECISION OF THE COORDINATE BENCH IN THE CASE OF BANSAL STEEL ROLLING MILLS (92 TAXMAN 314) WAS ALREADY EXTRACTED IN PARA 7 IN PAGE 4. THE SUMMARY OF THE DECISION I.E. IF THE EXP ORTS ARE ACCEPTED THERE COULD BE NO DISALLOWANCE OF PURCHASES WAS IN FACT CONSIDERED IN THE ORDER WITHOUT REFERRING TO THE SAID DECISION . SINCE THE ISSUE WAS RESTORED TO THE FILE OF AO FOR EXAMINATION OF F ACTS, WE ARE OF THE MA NO.87 OF 2012 INDUSTRIAL EXPORTS MUMBAI PAGE 4 OF 4 OPINION THAT THERE IS NO NEED TO REITERATE THE LEGA L PRINCIPLES ON THE ISSUE. HOWEVER, WE MAKE IT CLEAR TO AO TO CONSIDER THE ABOVE DECISION WHILE PASSING THE RE-ASSESSMENT ORDER. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION FILED B Y ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH SEPTEMBER, 2012. SD/- SD/- (D.K. AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 26 TH SEPTEMBER, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, I BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI