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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI ANIL CHATURVEDI
आदेश / ORDER PER ANIL CHATURVEDI, AM :
These two appeals filed by the assessee are emanating out of 1. separate orders of Commissioner of Income Tax (Appeals) – 8, Pune dated 04.01.2019 for A.Ys. 2009-10 & 2011-12 respectively.
Before me, at the outset, both the parties submitted that though the appeals filed by the assessee are for two different assessment years but the facts and issues involved in both the appeals are identical except for the assessment year and the amounts involved and therefore the submissions made by them while arguing one appeal would be equally applicable to the other appeal also and thus both the appeals can be
ITA Nos.531 & 532/PUN/2019
heard together. In view of the aforesaid submissions of both the parties,
I, for the sake of convenience, proceed to dispose of both the appeals by a
consolidated order but however, proceed with narrating the facts in ITA
No.531/PUN/2019 for assessment year 2009-10.
The relevant facts as culled out from the material on record are as
under :-
Assessee is an individual engaged in the business of trading of Oil
under the name and style of ‘Star Lubricants”. Assessee filed his original
return of income for A.Y. 2009-10 on 30.10.2009 declaring total income
at Rs.3,00,200/-. The return of income was initially processed u/s 143(1)
of the Act. Thereafter, on the basis of the information received from Sales
Tax Department, it was found that assessee had indulged into hawala
transactions of purchases. AO thereafter issued notice u/s 148 of the Act
and it is stated to have been served on the assessee. Consequently, the
case was taken for scrutiny and thereafter the assessment was framed
u/s 143(3) r.w.s. 147 of the Act vide order dt.12.03.2015 and the total
income was determined at Rs.11,43,960/-. Aggrieved by the order of AO,
assessee carried the matter before Ld.CIT(A), who vide order
dt.04.01.2019 (in appeal No.PN/CIT(A)-8/ITO-Wd 9(1)/640/2017-18)
dismissed the appeal of assessee. Aggrieved by the order of Ld.CIT(A),
assessee is now in appeal and has raised the following grounds :
“1. The Ld. CIT(A) erred in dismissing the Appeal filed by the Appellant as invalid and non-maintainable being barred by the period of limitation by rejecting appellants affidavit towards condonation of delay for 331 days explaining sufficient cause of delay. 2. The Ld. CIT(A) failed to appreciate that in appeal for AY 2010-2011 the delay on same grounds was condoned by the then Ld. CIT(A) & the case of AY 2009-2010 is a covered case wherein ITAT has given decisions for AY 2010-2011 on further appeal.
ITA Nos.531 & 532/PUN/2019
The Ld. AO has wrongly drawn erroneous inference by making total additions of Rs. 8,43,759/- towards bogus purchases from Mihir Marketing & Shifa Enterprises without any investigation & purely on the information of Sales Tax Department which is not justified as per provisions of law.”
Similar grounds have been raised in I.T.A. No.532/PUN/2019 for
A.Y. 2011-12.
On the basis of information received from Sales Tax Department, it
was noticed that assessee had made purchases aggregating to
Rs.8,43,759/- in A.Y 2009-10 from two parties i.e., Mihir Marketing and
Shifa Enterprises. AO was of the view that the purchases made by the
assessee from the aforesaid parties were not genuine and the purchases
have been made by the assessee to inflate the expenses to reduce the total
income of the assessee. Assessee was asked to prove the genuineness of
purchases by producing the copies of transportation bills/ lorry receipt,
delivery challans, extract of ledger account etc. To prove the genuineness
of transactions, assessee furnished copies of purchase bills, ledger extract
of the concerned parties in its books of account. Assessee however did
not furnish the confirmation of the parties concerned, proof of payment
made against alleged purchases of Rs.8,43,759/- etc. AO therefore
concluded the purchases to be bogus purchases and added it as
unexplained expenditure u/s 69C. Aggrieved by the order of AO, assessee
carried the matter before Ld.CIT(A), who dismissed the appeal of the
assessee.
Before me, at the outset, Ld.A.R. submitted that there was a delay
of 331 days in filing the appeal before Ld.CIT(A). Assessee filed the
affidavit explaining the reasons for delay in filing the appeal and prayed
for condonation of delay which was refused by the Ld.CIT(A). He further
ITA Nos.531 & 532/PUN/2019
submitted that Ld.CIT(A) without deciding on merits, dismissed the
appeal of assessee. Before me Ld.A.R. submitted that there was no
malafide intention in delayed filing the appeal before Ld.CIT(A) and
prayed that in the interest of justice, the delay in filing the appeal before
Ld.CIT(A) be directed to be condoned and if given an opportunity,
assessee will furnish all the details to prove his case. He therefore
prayed that suitable directions may be issued to Ld.CIT(A) to decide the
issue on merits. He further gave an undertaking that if given a chance,
assessee will appear before lower authorities and furnish all the required
details to substantiate his case. He therefore submitted that assessee be
granted one more opportunity to plead its case. Ld.D.R. on the other
hand supported the order of AO and Ld.CIT(A) and objected to Ld.A.R.’s
prayer for 2nd innings.
I have heard the rival submissions and perused the material on
record. I find that there was delay in filing the appeal before Ld.CIT(A)
and the delay was not condoned by Ld.CIT(A) and further Ld.CIT(A) has
passed dismissal order by rejecting the affidavit of assessee filed for
condonation of the delay without deciding the issue on merits. Before
me, Ld.A.R. has explained the reasons for delay in filing the appeal.
Considering the submissions of Ld.A.R. and in view of the well settled
principle of natural justice that sufficient opportunity of hearing should
be afforded to the parties and no party should be condemned unheard, I
am of the view that the delay in filing the appeal before Ld.CIT(A) needs to
be condoned. I accordingly, condone the delay in filing the appeal before
Ld.CIT(A). Further, since the Ld.CIT(A) has not decided the appeal on
merits, I am of the view that one more opportunity be granted to the
ITA Nos.531 & 532/PUN/2019
assessee to present his case. I therefore restore the matter back to the file
of Ld.CIT(A) to decide the issue on merits afresh in accordance with law.
Needless to state that Ld.CIT(A) shall grant adequate opportunity of
hearing to both the parties. Assessee is also directed to promptly furnish
all the details called for by the lower authorities. In view of my decision to
restore the issue to Ld.CIT(A), I am not adjudicating on merits the
grounds of the appeal raised by the assessee. Thus, the grounds of
assessee are allowed for statistical purposes.
In the result, the appeal of assessee in ITA No.531/PUN/2017
for A.Y. 2009-10 is allowed for statistical purposes.
Now I take up assessee’s appeal in ITA No.532/PUN/2017 for A.Y
2011-12.
As far as the grounds raised in appeal in ITA No.532/PUN/2017 for
A.Y. 2011-12 is concerned, in view of the submission of both the parties
that the facts of the case in the year being identical to the facts and issue
of the case in ITA No.531/PUN/2017 for A.Y. 2009-10, I therefore for the
reasons stated herein while disposing of the appeal in ITA
No.531/PUN/2017 for A.Y. 2009-10, and for similar reasons restore the
issue to the file of Ld.CIT(A) to decide the issue on merits. Thus, the
grounds of assessee are allowed for statistical purposes. Thus, the
grounds of the assessee are allowed.
In the result, the appeal of assessee in ITA No.532/PUN/2017
for A.Y. 2011-12 is allowed for statistical purposes.
ITA Nos.531 & 532/PUN/2019
To sum up, both the appeals of assessee are allowed for statistical purposes.
Order pronounced on 7th day of June, 2019.
Sd/- Sd/-- (ANIL CHATURVEDI) लेखा सद�य / ACCOUNTANT MEMBER
पुणे Pune; �दनांक Dated : 7th June, 2019. Yamini
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. CIT(A)-8, Pune. 4. Pr. CIT-4, Pune. 5 �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “एक सद�य” / DR, ITAT, “SMC” Pune; 6. गाड� फाईल / Guard file.
आदेशानुसार/ BY ORDER // True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.