Gurjranwala Jewellers, Jalandhar V. The Assistant commissioner of Income Tax, Jalandhar

SA 9/ASR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3307 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 27-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Assessee Lawyers: Y K SUD LD
• Keywords: Bogus purchase; Period of limitation; Application of stay; Tangible material

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH T.S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER S.A. NO. 09(ASR)/2017 (ARISING OUT OF ITA NO.226(ASR)/2017) ASSESSMENT YEAR:2007-08 M/S. GUJRANWALA JEWELLERS, PLAZA CHOWK, G. T. ROAD, JALANDHAR. PAN:AAAFG-8382R VS. ACIT, CIRCLE-III JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. Y. K. SUD (LD. CA) RESPONDENT BY: SH. RAHUL DHAWAN (LD. DR) DATE OF HEARING : 08.09.2017 DATE OF PRONO UNCEMENT: 08.09.2017 ORDER PER N.K.CHOUDHRY (JM): THIS IS STAY APPLICATION FILED BY THE ASSESSEE IN RESPECT O F DEMAND OF RS.5,61,27,00/- QUA FOR ASST. YEAR 2007-08. THE LD. AR IN SUPPORT OF STAY APPLICATION SUBMITTED AS UNDER:- THAT A DEMAND OF HUGE DEMAND OF RS.5612700/- WAS CREAT ED BY MAKING A DISALLOWANCE OF RS.8676315/- ON ACCOUNT OF ALLE GED BOGUS PURCHASE. THE ASSESSEE FILED AN APPEAL BEFORE CIT(A) ALON GWITH STAY OF DEMAND APPLICATION AND CIT(A) DISPOSED OFF STAY APPLICA TION BY IMPOSING A CONDITION OF DEPOSITING 50% OF THE DISPUTED DEMAND. ASSESSEE PAID THE 50% DEMAND OF RS.2807000/- AND BALANCE DEMAND OF RS.2805700/- WAS STAYED. IN THE MAIN APPEAL, THE LD. CIT(A)-2 JALANDHAR PASSED AN ORDER DATED 20.03.2017 WHEREIN BY IGNORING THE WRITTEN SUB MISSIONS OF THE ASSESSEE AND VARIOUS CASE LAWS RELIED UPON BY THE ASSESSEE SUSTA INED THE ADDITION THEREFORE THE ASSESSEE HAD PREFERRED AN AP PEAL BEFORE THE ITAT AGAINST THE ORDER OF CIT(A) AND HAS ALSO MOVED A STAY PETITION S.A NO.09(ASR)/2017 AR ISING OUT OF ITA NO.226(ASR)/2017 ASSESSMENT YEARS: 2007-08 2 BEFORE THE HONBLE BENCH TO STAY THE DISPUTED DEMAND OF RS.2805700/-. THE DEMAND HAS BEEN CREATED BY THE AO BY REOPENING OF THE ASSESSMENT BEYOND THE PERIOD OF LIMITATION WITHO UT ANY TANGIBLE MATERIAL AND TREATING THE GENUINE PURCHASES OF RS.86763 15/- AS BOGUS PURCHASES, RESULTANTLY A HIGH PITCH ASSESSMENT ORDER WAS PASSE D AND THE CIT(A) WHILE DISPOSING OFF THE APPEAL NOT ONLY OV ERLOOKED THE LEGALITY OF THE ORDER BUT ALSO UPHELD THE ADDITIONS B Y IGNORING ALL THE MATERIAL FACTS. THE ASSESSEE HAD ALREADY DEPOSITED 50% OF THE DISPUTED DEMAND ON THE DIRECTIONS OF THE CIT(A) AND IN CASE MADE TO PAY THE TOTAL DEMAND HIS WORKING CAPITAL WILL BE EROD ED CAUSING THE HEAVY LOSS OF BUSINESS. THEREFORE KEEPING THE CIRCUMSTANC ES IN MIND IT IS PRAYED THAT STAY OF DEMAND BE GRANTED. 2. ON THE OTHER HAND, THE LD. DR ARGUED ALTHOUGH THE CASE OF THE ASSESSEE IS LIABLE TO BE DISMISSED AT THRESHOLD, HOWEVER , T HE APPEAL WILL COME ON ITS TURN THEREFOR, IF THE TRIBUNAL PER SUADED, THEN THE STAY CAN BE GRANTED ONLY ON IMPOSITION OF STERN CONDITI ONS. 3. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE AS IN THE INSTANT CASE THE DEMAND OF THE ADDITION AS DETERMINED BY THE A.O WAS STAYED BY THE FIRST APPELLATE AUTHORIT Y ON DEPOSIT OF 50% OF THE DEMANDED AMOUNT. AS THE LD. COUNSEL FOR THE APPELLANT HAS ARGUED THA T THE IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT(A), JALA NDHAR BY IGNORING THE WRITTEN SUBMISSIONS AND VARIOUS CASE LAWS REL IED UPON BY THE ASSESSEE AND IN THE INSTANT CASE DEMAND HAS BEEN CREATE D BY THE A.O. BY RE-OPENING OF THE ASSESSMENT BEYOND THE PERIOD OF LIMITATION, WITHOUT ANY TANGIBLE MATERIAL AND TREATING THE GENU INE PURCHASE OF RS.86,76,315/- AS BOGUS PURCHASES AND THE LD. CIT(A) NOT ONLY S.A NO.09(ASR)/2017 AR ISING OUT OF ITA NO.226(ASR)/2017 ASSESSMENT YEARS: 2007-08 3 OVERLOOKED LEGALITY OF THE ORDER BUT ALSO UPHELD THE ADDITION BY IGNORING ALL THE MATERIAL FACTS AND THE ASSESSEE HAS ALRE ADY DEPOSITED 50% AMOUNT AND IN CASE MADE TO PAY THE TOTAL DEMAND T HEN THE ASSESSEE'S CAPITAL WILL BE ERODED AND SHALL CAUSE THE HEAVY LOSS OF BUSINESS. AT THIS JUNCTURE, WE ARE NOT INCLINED TO GO INTO THE MERIT OF THE CASE AS ASSESSEE HAS STATUTORY RIGHT TO FILE SECOND APPEAL AND EVEN OTHERWISE PRIMA FACIE, IT APPEARS THAT THE ASSESSEE HAS RAI SED DEBATABLE ISSUES AND 50% OF THE DEMANDED AMOUNT HAS A LREADY BEEN DEPOSITED BY ASSESSEE ON 21 ST AUGUST, 2015, THEREFORE, THE BALANCE OF CONVENIENCE LIES IN FAVOUR OF THE ASSESSEE AND CONSIDERING T HE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, AS DISPOSAL OF APPEAL WILL TAKE CONSIDERABLE TIME, THEREFORE, IT WOULD BE APPROPRIATE TO STAY THE DEMAND AT LEAST FOR SIX MONTHS. HENCE, THE AFORESAID DEMAND I.E., 50% OF THE ADDITION SHALL REMAIN STAYED FOR SIX MONTHS FROM THE DATE OF ORDER. 4. IN VIEW OF THE ABOVE, THE STAY APPLICATIONS FILED BY ASSESSEE IS ALLOWED IN THE MANNER AS STATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 0 8.09.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED: 08.09.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER