GIRIRAJ KISHAN SHARMA,MUMBAI vs. ITO 12 (1)(1), MUMBAI

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ITA 6481/MUM/2019Status: DisposedITAT Mumbai09 November 2021AY 2009-103 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted that no doubt was expressed about the sales and referred to a precedent regarding bogus purchases. The Tribunal also acknowledged the assessee's right to raise claims not made through a revised return.

What were the facts?

The Assessing Officer made a 100% addition for bogus purchases amounting to Rs. 1,13,827/-, despite the assessee providing documentary evidence. The CIT(A) confirmed the AO's action, emphasizing the assessee's non-appearance.

What were the issues?

Whether the assumption of jurisdiction by the AO for reassessment was valid and whether the AO and CIT(A) erred in not considering set-off of losses and deductions.

Which sections of the Income-tax Act were involved?

Section 147,Section 80C,Section 80D,Section 139(1),Section 139(5)

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Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai

For Respondent: Ms. Smita Verma
Hearing: 12.10.2021Pronounced: 09.11.2021

The appeal by the assessee is directed against the order of learned Commissioner of Income Tax (Appeals) [in short learned CIT(A)]27.6.2019 pertains to A.Y. 2009-10.

2.

The grounds of appeal

read as under :- Grounds of appeal against the order of the learned CIT(A)- 20, Mumbai dated 27.06.2019 passed u/s. 250 of the Income-tax Act 1961. Following grounds of appeal are without prejudice to each other:

1. On the facts and circumstances of the case and in law, the learned CIT(A) erred in not holding the assumption of jurisdiction by the learned Assessing Officer as bad in law as the conditions laid down under the Act for initiating reassessment proceeding u/s 147 of the Act were not fulfilled.

2. On the facts and circumstances of the case and in Jaw, the learned CIT(A) has erred in not considering the fact that the order passed by the Learned Assessing Officer was without considering the setoff of loss under the head 'Income from House property' of Rs. 1,33,024/-from the head 'Profit and Gains from Business or Profession'.

2 Giriraj Kishan Sharma

3. On the facts and circumstances of the case and in law, the learned C1T(A) has erred in not considering the feet that the order passed by the Learned Assessing Officer was without considering the Deductions under Chapter VI-A of Rs. 1.00,000/- u/s 80C and 15,000/- u/s 80D of the Act.

4. On the facts and circumstances of the case and in law, the learned A,O, erred in making the addition of Rs. 1,13,827/- being 100% of the purchases made from M/s Pragati Enterprises by treating genuine purchases as non genuine purchases/unexplained expenditure.”

3.

In this case the Assessing Officer made 100% addition for bogus purchases amounting to Rs. 1,13,827/-. The assessee has provided all the documentary evidences but drawing adverse inference for non-production of supplier 100% addition was done by the Assessing Officer. No doubt about the sales was expressed.

4.

Before learned CIT(A) assessee raised following grounds :- 1) Assessee has been denied the opportunity to rectify the genuine errors in the original Return of income filed u/s. 139(1).

2) Assessment Order has been passes by A.O. Ignoring the facts submitted at the time of hearing. 3) Assessee may be provided the opportunity to file Revision return u/s. 139(5).

5.

Learned CIT(A) also noted the following :

“Letters seeking adjournment of hearings fixed on 13.05.2016 and 20.06,2019 were filed by Shri A.S. Masurkar, CA. Shri A.S, Masurkar, CA also filed a letter dated 12.06.2017 wherein he made a request for allowing appellant's claim of deduction under section 80C, SOD and also set off of loss of income from house property. However, Shri A.S. Masurkar, CA did not file Letter of authority in his favour, Therefore, the aforementioned letters are not taken cognizance of.”

The learned CIT(A) rejected all the grounds and confirmed the Assessing Officer’s action. He put great emphasis of non-appearance of the assessee.

6.

Against this order the assessee is in appeal before the ITAT.

7.

I have learned Departmental Representative and perused the records. I note that the assessee in this case is a trader. No doubt has been expressed by 3 Giriraj Kishan Sharma the Assessing Officer about the sales. In such circumstances, the decision of Hon'ble Nikunj Eximp Enterprises Pvt. Ltd. (372 ITR 619) is applicable. Authorities below have erred in not considering the same.

8.

As regards additional ground raised by the assessee I note that Hon'ble Apex Court in the case of Goetze India Ltd. Vs. CIT (2006) 284 ITR 323, has held that their order in that case would not impinge upon the powers of the ITAT to admit claim otherwise than by revised return. Accordingly in the interest of justice, I remit all the issues raised to the file of the Assessing Officer. The Assessing Officer shall consider them afresh, keeping in mind the observation hereinabove. Needless to add assessee should be grant proper opportunity of being heard.

9.

In the result, appeal is allowed for statistical purposes. Pronounced in the open court on 9.11.2021.

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