DILIP GHANSHAMDAS MOHATTA, MUMBAI v. ACIT- 21 (1), MUMBAI

ITA 5595/MUM/2018 | 2011-2012
Pronouncement Date: 20-11-2019 | Result: Allowed

Appeal Details

RSA Number 559519914 RSA 2018
Assessee PAN AABMP6743P
Bench Mumbai
Appeal Number ITA 5595/MUM/2018
Duration Of Justice 1 year(s) 1 month(s) 17 day(s)
Appellant DILIP GHANSHAMDAS MOHATTA, MUMBAI
Respondent ACIT- 21 (1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 20-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 20-11-2019
Last Hearing Date 23-10-2019
First Hearing Date 23-10-2019
Assessment Year 2011-2012
Appeal Filed On 03-10-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI SHAMIM YAHYA (AM) & SHRI PAWAN SINGH (JM) ITA NO. 5595/MUM/2018(ASSESSMENT YEAR : 2011-12) DILIP GHANSHAMDAS MOHATTA 1 PARIKH CHAMBERS 205 PANDURANG NAIK ROAD SHIVAJI PARK MAHIM MUMBAI-400 016 PAN : AABMP6743P VS ITO 21(1)-3 PIRAMAL CHAMBERS LALBAUG MUMBAI -400012 APPELLANT RESPONDEDNT APPELLANT BY SHRI RAKESH H MILWANI RESPONDENT BY SHRI AKHTAR H ANSARI DATE OF HEARING 20-11-2019 DATE OF PRONOUNCEMENT 25-11-2019 O R D E R PER PAWAN SINGH JM : 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)- 48 MUMBAI DATED 30-08-2018 FOR THE ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ' 1. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 48 MUMBAI ( HEREINAFTER FOR THE SAKE OF BREVITY REFERRED TO AS 'THE CIT(A)') ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL OF THE APPELLANT ON THE GROUN D THAT THE APPELLANT HAS NOT APPEARED BEFORE HIM WITHOUT APPRECIATING THE FA CT THAT THE APPELLANT HAD ALREADY UPLOADED UNDER HIS DIGITAL SIGNATURE THE SUBMISSIONS ON WHICH THE APPELLANT CHOSE TO RELY AT THE DESIGNATED INCOME T AX PORTAL WHERE A PROVISION FOR SUBMISSION TO THE CIT(A) HAS TO BE MA DE. 2. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT CONSIDERING THE FACTS OF THE CASE AND GROUNDS OF AP PEAL BEFORE THE CIT(A). 2 ITA 5595/MUM/2018DILIP DILIP GHANSHYAMDAS MOHATTA 3. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE ORDER OF THE CIT(A) DISMISSING THE APPEAL BE SET ASIDE AND THE C IT(A) BE DIRECTED TO REHEAR THE APPELLANT BEFORE DECIDING THE APPEAL. 4. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THE EXERCISE OF POWER BY THE ASSESSING OFFICER UNDER SECTION 147 OF THE INCOME TAX ACT 1961 EXERCISING THE POWER OF RE-OPENING OF ASSESSM ENT BE DECLARED AS BAD IN LAW AND VOID ABINITIO AND ASSESSMENT MADE IN CON SEQUENT THEREOF ALSO BE DECLARED AS SUCH. 5. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THE CITA) AFTER ADMITTING THAT THE STATEMENT OF FACTS HAVE NOT BEEN DISPUTED BY THE ASSESSING OFFICER OUGHT TO HAVE CONSIDERED THE STAT EMENT OF FACTS AND DECIDED THE APPEAL IN FAVOUR OF THE APPELLANT. 6. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THE CITA) OUGHT TO HAVE DELETED THE ADDITIONS MADE TO THE INCOME OF THE APPELLANT OR ALTERNATELY HAVE REDUCED THEM SUBSTANTIALLY. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF TRADING AND MANUFACTURIN G ENGINEERING GOODS CHEMICALS AND PLASTIC TUBES FILED ITS RETURN OF IN COME ON 05-09-2011 DECLARING TOTAL INCOME AT RS.2 05 983/- WHICH WAS P ROCESSED U/S 143(1) OF THE INCOME-TAX ACT (ACT). THE ASSESSMENT WAS RE-OPENED UNDER SECTION 147 ON THE BASIS OF INFORMATION RECEIVED FROM SALE TAX DEPARTMENT GOVERNMENT OF MAHARASHTRA INFORMING THAT CERTAIN HA WALA OPERATORS WERE INDULGING IN PROVIDING ACCOMMODATION BILLS WITHOUT ACTUAL DELIVERY OF GOODS. THE SALE TAX DEPARTMENT GOVERNMENT OF MAHAR ASHTRA REFERRED THE LIST OF SUCH HAWALA DEALERS AND THE BENEFICIARY TO THE DGIT (INVESTIGATION) MUMBAI. THE NAME OF ASSESSEE APPEARED IN THE LIST O F BENEFICIARIES. THE 3 ITA 5595/MUM/2018DILIP DILIP GHANSHYAMDAS MOHATTA ASSESSEE ALLEGEDLY MADE THE PURCHASES OF RS. 22 41 865/- FROM SUCH HAWALA DEALERS. ON THE BASIS OF INFORMATION THE ASSESSING OFFICER MADE A BELIEF THAT THE INCOME OF THE ASSESSEE ESCAPED ASSESSMENT THEREFORE RE-OPENED THE ASSESSMENT UNDER SECTION 147. NOTICE UNDER SECTION 148 DATED 04-03-2016 WAS ISSUED TO THE ASSESSEE. THE ASSESSEE IN RESPO NSE VIDE LETTER DATED 14- 03-2016 SUBMITTED THAT THE RETURN OF INCOME ALREADY FILED MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE U/S 148. THE AS SESSING OFFICER THEN ISSUED NOTICES U/S 143(2) AND 142(1) ALONG WITH A QUESTION NAIRE. DURING THE ASSESSMENT THE ASSESSING OFFICER NOTED THAT THE AS SESSEE HAS SHOWN PURCHASES FROM THE FOLLOWING PARTIES WHO WERE DECL ARED AS HAWALA DEALERS BY THE SALE TAX DEPARTMENT GOVERNMENT OF MAHARASHT RA: NAME OF THE PARTIES BILL AMOUNT (RS.) 1 HARISHI FERROMETY P LTD 39 466 2 PARVESH ENTEPRISES 22 02 390 TOTAL AMOUNT 22 41 865 3. AFTER ANALYSING THE BOOKS OF THE ASSESSEE AND THE E VIDENCES FURNISHED BY ASSESSEE THE AO CONCLUDED THAT THE PURCHASES MADE BY ASSESSEE FROM THE ABOVE PARTIES WERE NOT GENUINE AS CLAIMED AND DEBIT ED IN HIS P&L ACCOUNT. THE AO REJECTED THE BOOKS OF ACCOUNT OF T HE ASSESSEE. THE AO CONCLUDED THAT BY SHOWING THE PURCHASES FROM HAWALA PARTIES THE ASSESSEE SUPPRESSED THE PROFIT TO REDUCE THE TAX LI ABILITY. THE AO 4 ITA 5595/MUM/2018DILIP DILIP GHANSHYAMDAS MOHATTA ACCORDINGLY DISALLOWED 24.62% OF THE NON GENUINE PU RCHASES BEING THE PROFIT RATIO ON THE GENUINE PURCHASES. THE ASSESSE E FILED APPEAL BEFORE LD. CIT(A) WHICH WAS DISMISSED THE EX-PARTE WITH OUT DISCUSSING THE ISSUE ON MERIT. FURTHER AGGRIEVED ASSESSEE HAS FIL ED FURTHER APPEAL BEFORE US. 4. WE HAVE HEARD THE SUBMISSIONS OF THE LD.AR FOR THE ASSESSEE AND THE LD. DR OF THE REVENUE. AT THE OUTSET OF HEARING THE LD .AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE UPLOADED ALL THE SUBMISSI ON ON THE PORTAL OF LD. CIT(A). THE LD. AR OF THE ASSESSEE FURNISHED THE A CKNOWLEDGEMENT OF UPLOADING THE NECESSARY INFORMATION / SUBMISSION I N THE FORM OF VARIOUS PDFS. THE LD.AR OF THE ASSESSEE SUBMITS THAT THE A SSESSEE WAS NEITHER HEARD ON MERIT NOR GRANTED SUFFICIENT OPPORTUNITY O F HEARING BY THE LD.CIT(A). THE ASSESSEE SUBMITS THAT HE HAS A GOOD CASE ON MERIT AND WILL SUCCEED IN CASE THE ASSESSEE IS GIVEN HEARING ON MERIT. THE LD.AR OF THE ASSESSEE SUBMITS THAT MATTER MAY BE RESTORED TO THE FILE OF LD.CIT(A) FOR DECISION ON MERIT. 5. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LD. CIT(A). THE LD. DR SUBMITS THAT THE ASSESSEE HAS N OT APPEARED BEFORE THE LD. CIT(A) DESPITE SERVICE OF NOTICE AND DESERV E NO LENIENCY AT THIS STAGE. 5 ITA 5595/MUM/2018DILIP DILIP GHANSHYAMDAS MOHATTA 6. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. REPRE SENTATIVES OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. PERUSAL OF ORDER SHOWS THAT THE LD.CIT(A) HAS NOT DISCUSSED THE MERI T OF THE CASE AND DISMISSED THE APPEAL BY APPLYING THE RATIO OF DECIS ION IN CASE OF CIT VS MULTIPLAN (I) PVT LTD 38 ITD 320(DEL). FURTHER PER USAL OF ORDER SHOWS THAT AT PARA 4 OF IMPUGNED ORDER THE LD.CIT(A) HAS RECORDED THAT NOTICE OF HEARING OF APPEAL WAS SENT FOR 18 TH JULY 2018 & 30 TH JULY 2018 AND FINALLY FOR 16-08-2018. THE LD. CIT(A) HAS NOT REC ORDED ITS SATISFACTION WHETHER THE NOTICES WERE DULY SERVED OR RETURNED UN SERVED. WE HAVE FURTHER NOTED THAT THE LD.AR OF THE ASSESSEE HAS PL ACED ON RECORD THE ACKNOWLEDGEMENT REGARDING THE SUBMISSION AND VARIOU S DOCUMENTARY EVIDENCES INCLUDING LEGAL SUBMISSION UPLOADED ON TH E PORTAL OF CIT(A). FACTS REMAIN THAT THE APPEAL OF THE ASSESSEE WAS DE CIDED WITHOUT GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE AND T HE CASE WAS NOT DISCUSSED ON MERIT. THE ORDER OF THE LD CIT (A) IS NOT IN CONSONANCE WITH THE MANDATES OF THE PROVISIONS OF SECTION 250(6) OF THE ACT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE WE DEEM IT APPROPRIATE TO RESTORE THE APPEAL OF ASSESSEE TO THE FILE OF THE CIT(A) WI TH THE DIRECTION TO DECIDE THE APPEAL ON MERIT. NEEDLESS TO ORDER THAT BEFORE PASSING THE ORDER THE LD .CIT(A) SHALL GRANT OPPORTUNITY OF HE ARING TO THE ASSESSEE. 6 ITA 5595/MUM/2018DILIP DILIP GHANSHYAMDAS MOHATTA THE ASSESSEE IS ALSO DIRECTED TO JOIN THE PROCEEDIN GS AND TO PROVIDE NECESSARY INFORMATION AND EVIDENCES TO THE LD CIT(A ) AND NOT TO SEEK ADJOURNMENT WITHOUT VALID REASONS. 7. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATED A S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-11-2019. SD/- SD/- (SHAMIM YAHYA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI DT : 25 NOVEMBER 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR ITAT MUMBAI