ARPAN PRABHACHAND, Ajmer V. ITO, BEAWAR

SA 03/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3652 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 13-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L NEHRA JCIT DHK
• Assessee Lawyers: PRAKUL KHURANA
• Keywords: Bogus purchase; Application of stay
• Section: 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M STAY APPLICATION NO. 03/JP/2018 (ARISING OUT OF ITA NO. 427/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15. SHRI ARPAN PRABHACHAND BARJATIYA. BIJAINAGAR. CUKE VS. ITO, WARD-1, BEAWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AKKPB 2567 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI PRAKUL KHURANA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.L. NEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16.02.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 16/02/2018. VKNS'K@ ORDER PER: SHRI VIJAY PAL RAO, JM BY WAY OF THIS APPLICATION, THE ASSESSEE IS SEEKIN G STAY AGAINST THE OUTSTANDING DEMAND OF RS. 47,76,400/-. 3. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH E ADDITION IN THIS CASE WAS MADE BY THE AO ON ACCOUNT OF BOGUS PURCHASES WH ICH WAS CONFIRMED BY THE LD. CIT(A). THE ADDITION IN QUESTION IS BASED ON ESTIMATION AND ADHOC AS THE AUTHORITIES BELOW HAVE MADE AN ADDITION OF 15% OF THE TOTAL PURCHASES, DESPITE ALL THE DOCUMENTARY EVIDENCES LIKE PURCHASE INVOICES, PAYMENT PROOFS ETC. HAVE BEEN FILED BY THE ASSESSEE. THE LD. AR H AS FURTHER SUBMITTED THAT THE AO HAS DRAWN NEGATIVE INFERENCE WHEN THE SUPPLI ERS HAVE NOT RESPONDED AND APPEARED FOR EXAMINATION. THUS, HE HAS STATED THAT THE ASSESSEE IS 2 SA NO. 03/JP/2018. SHRI ARPAN PRACHACHAND BARJATIYA VS. ITO. HAVING A PRIMA FACIE A GOOD CASE ON MERITS. THEREFO RE, THE RECOVERY OF THE OUTSTANDING DEMAND MAY BE STAYED TILL THE DISPOSAL OF THE APPEAL. LD. AR HAS FURTHER POINTED OUT THAT THERE WAS A SURVEY U/S 133 A ON THE BUSINESS PREMISES OF THE FATHER OF THE ASSESSEE AND DURING T HE SURVEY PROCEEDINGS THE PARENTS OF THE ASSESSEE WERE FORCED TO PAY RS. 5 LA CS OUT OF THE TOTAL OUTSTANDING DEMAND OF RS. 52,76,400/-. 3. ON THE OTHER HAND, LD. D/R HAS VEHEMENTLY OPPOSE D TO THE STAY APPLICATION OF THE ASSESSEE AND SUBMITTED THAT THE CONDUCT OF THE ASSESSEE DOES NOT DESERVE ANY RELIEF AGAINST THE RECOVERY IN QUESTION. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AS WELL AS RELEVANT MATERIAL ON RECORDS. THE TOTAL DEMAND RAISED BY THE AO IN T HIS CASE IS RS. 52,76,400/- OUT OF WHICH THE ASSESSEE HAS PAID SUM OF RS. 5 LAC S VIDE CHALLAN DATED 02.02.2018. THE LD. AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSE IS NOT IN A POSITION TO PAY THE OUTSTANDING DEMAND AND SAM E MAY BE STAYED. HOWEVER, WE FIND THE ISSUE INVOLVED IN THE APPEAL O F THE ASSESEE IS FACTUAL IN NATURE REGARDING THE BOGUS PURCHASES AND THEREFORE NO VIEW CAN BE EXPRESSED ON THE MERITS OF THE ISSUE AT THIS STAGE. WE FURTHER NOTE THAT THE ASSESSEE FILED THE APPEAL AGAINST THE IMPUGNED ORDE R OF THE LD. CIT(A) ON 26 MAY, 2017 AND THEREAFTER THE APPEAL OF THE ASSESSEE WAS LISTED FOR HEARING ON FIVE OCCASIONS/ DATES. THE HEARING OF THE APPEAL C OULD NOT HAPPEN BECAUSE OF THE REASONS THAT ON ALL FIVE DATES OF HEARINGS, THE ASSESSEE SOUGHT ADJOURNMENT. 3 SA NO. 03/JP/2018. SHRI ARPAN PRACHACHAND BARJATIYA VS. ITO. 4.1 THUS, ON THE ONE HAND, THE ASSESSEE HAS BEEN SE EKING ADJOURNMENT OF THE HEARING OF THE APPEALS REPEATEDLY ON ALL THE FI VE DATES AND ON THE OTHER HAND, THE ASSESSEE IS SEEKING STAY AGAINST THE OUTS TANDING DEMAND. THEREFORE, IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE CASE, WHEN THE DELAY IN HEARING AND ADJUDICATION OF THE APPEAL IS SOLELY ATTRIBUTABLE TO THE ASSESSEE, THEN THE ASSESSEE HAS FAILED TO MAKE OUT A CASE FOR GRANT OF STAY. ACCORDINGLY, WE DISMISS THE STAY APPLICATION FILED BY THE ASSESSE. THE APPEAL OF THE ASSESSEE IS ALREADY FIX FOR HEARING ON 7.3.2 018, AND THE SAME MAY BE LISTED IN THE CATEGORY OF OUT OF TURN HEARING. THE REGISTRY IS ACCORDINGLY DIRECTED TO LIST THE APPEAL OF THE ASSESSEE IN THE CATEGORY OF STAY REJECTED MATTERS. 5. IN THE RESULT, STAY APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/02/2018. SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 16/02/2018. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI ARPAN PRABHACHAND BARJATIYA, BIJAINNAGAR. 2. THE RESPONDENT THE ITO, WARD-1, BEAWAR. 3. THE CIT. 4. THE CIT (4), 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (SA NO. 03/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 4 SA NO. 03/JP/2018. SHRI ARPAN PRACHACHAND BARJATIYA VS. ITO.