FIROZ AHMED MOH. MOTIN CHOUDHARY,PUNE vs. INCOME-TAX OFFICER, WARD - 9 (1), PUNE

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.

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.

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

A.Y. 2011-12.

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.

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.

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.

for A.Y. 2009-10 is allowed for statistical purposes.

2011-12.

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.

for A.Y. 2011-12 is allowed for statistical purposes.

ITA Nos.531 & 532/PUN/2019

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.