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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI C.N PRASAD & SHRI RAMIT KOCHAR
O R D E R
PER RAMIT KOCHAR, Accountant Member:
This appeal, filed by assessee, being is directed against appellate order dated 05.12.2017, passed by learned Commissioner of Income Tax (Appeals)-32, Mumbai (hereinafter called “the CIT(A)”) in appeal number CIT(A)-32/IT-502/ITO-20(1)(4)/15-16, for assessment year 2010-11, the appellate proceedings had arisen before learned CIT(A) from assessment order dated 01.02.2016 passed by learned Assessing Officer (hereinafter called “the AO”) u/s 143(3) r.w.s. 147 of the Income-tax Act, 1961 (hereinafter called “the Act”) for AY 2010-11.
The grounds of appeal raised by assessee in memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the tribunal”) read as under:- “1) Both the lower authorities erred in holding that an amount of Rs. 87,85,369/-be required to be disallowed as bogus purchases. 2) The appellant submits the disallowance is unjustified because no valid satisfaction is recorded by either of the lower authorities, and without considering the facts and circumstances of the case. 3) The appellant submits that no disallowance can be made in the absence of a valid reason for disagreeing with the appellant's contention. 4) The appellant submit that if at all any expenditure has been claimed the same is said to have already been disallowed under the computation of tax. 5) Having regard to the facts and circumstances of the case, and the provisions of law, the appellant submits that the disallowance is unjustified and the same requires to be deleted.”
3. The assessee is engaged in the business of manufacturing of Engineering Goods. The information was received by AO from DGIT(Inv.) , Mumbai, that the Sales Tax Department has carried out investigations and published a list of parties who provides accommodation bills and list of beneficiaries of these alleged bogus purchases. The assessee was listed as one of beneficiaries of accommodation entries by way of bogus purchases without actual delivery of goods from the following alleged hawala dealers during the previous year relevant to impugned assessment year , the details of which are as under:- Sr. No Name of the Parties Amount in ruppees 1. Niddhish Impex P. Ltd 24,23,208/- 2. Magnum enterprices 63,62,161/- Total 87,85,369/- 3.2 The assessee’s concluded assessments were reopened by the AO u/s 147 of the 1961 Act and notice u/s 148 of the 1961 Act was issued by AO against assessee on 19.02.2015 which was claimed by AO to be duly served on assessee. We are presently concerned with AY 2010-11 and thus notices u/s 148 was issued by AO within four years from the end of assessment year for reopening of the concluded assessment and originally no assessment was framed by the AO u/s 143(3) of the 1961 Act. The AO also issued notices to the assessee u/s 143(2) and u/s. 142(1) and opportunities were given by the AO to the assessee to present its case, but there was no appearances on behalf of the assessee before the AO, which led AO to disallow entire alleged bogus purchases wherein AO made additions to the tune of 100% of alleged bogus purchases aggregating to Rs. 87,85,369/- , vide re- assessment order dated 01.02.2016 passed by the AO u/s. 143(3) r.w.s. 147 of the 1961 Act. 6. The assessee being aggrieved by re-assessment order dated 01.02.2016 passed by the AO u/s 147 read with Section 143(3) of the 1961 Act, filed an first appeal with Ld. CIT(A) and again there was no appearance of the assessee before Ld. CIT(A) which led Ld. CIT(A) to adjudicate appeal of the assessee ex-parte holding against assessee wherein 100% of alleged bogus purchases to the tune of Rs. 87,85,369/- stood confirmed by learned CIT(A) by confirming additions to the income of the assessee as were earlier made by AO in its reassessment order, vide appellate order dated 05.12.2017 passed by Ld. CIT(A) , by holding as under:- “ 2.4 I have given my careful consideration to the submissions, perused the material on record and duly considered the factual matrix of the case as also the applicable legal position. At the outset, it has to be mentioned that the appellant has not shown any interest to pursue its appeal . The case has 3 | P a g e been posted on several occasions for hearing as per the notices issued and placed on record. Hence, it is observed that several opportunities of hearing were afforded to the appellant and there has been no proper compliance which shows that the appellant has no interest to pursue or prosecute the appeal. The last notice in ITNS-37 fixing the date of hearing on 28-11-2017. It was mentioned in the said letter that this is final opportunity. Even after four times hearing was fixed. But there was no response from the appellant/the AR nor filed anything in support of the appeal . It is the appellant who filed this appeal aggrieved by the assessment order and the appellant is expected to not only pursue the appeal but effectively prosecute the appeal before the appellate authority if he is genuinely aggrieved by the assessment order, in view of the facts and circumstances narrated above, the appeal filed by the appellant does not deserve any merit consideration and has to be dismissed. Hence, I have no other option but to dismiss the appeal. Reliance is placed on the decision of the Hon'ble Chandigarh Tribunal in the case of Susham Singla (33 ITR 449)(2014). In this case it was held that where none was present on behalf of the appellant for hearing, neither any adjournment was sought, the appeals filed by the assessee was to be dismissed . Hon'ble Cochin Bench of the ITAT in its decision (43 Taxnnann.com 176) observed that the assessee's appeal can be dismissed where the assessee had failed to show that there was a reasonable cause for non-appearance on the date of hearing of appeal. Also, the Hon’ble jurisdictional High Court in a recent judgment in the case of Bharat Petroleum Corporation Ltd (359 ITR 371) (2014) upheld the dismissal of the appeal by the Tribunal for not prosecuting the appeal filed before the Tribunal. Similarly, Hon'ble Bombay High Court in the case of Jayantiial S. Shah (53 Taxman 229) upheld the decision of the Tribunal in favour of the Revenue. In this case the assessee sought an adjournment in certain proceedings before the Tribunal which was granted and on the adjourned date chose not to attend the proceedings. The Tribunal's rejection of the assessee's petition without further opportunity of being heard was upheld by the Bombay High Court. Reliance is also placed on the decision of the Hon'ble Delhi court in the case of Multiplan India P. Ltd 38 ITD 320(1991)(Delhi). In the light of the facts of the case and the decisions of the cases cited above, I dismiss the appeal.
6.2 Thus, in nutshell learned CIT(A) upheld re-assessment order dated 01.02.2016 passed by the AO and consequentially 100% of the alleged bogus purchases which were disallowed and added to the income of the assessee by the AO was confirmed by learned CIT(A), vide appellate order dated 05.12.2017.
Being Aggrieved by appellate order dated 05.12.2017 passed by learned CIT(A), the assessee has filed an appeal before tribunal. 7.2 The assessee has appeared in person before the tribunal when the appeal was called for hearing on 06th June 2019. The assessee has filed an additional evidences for the first time before the tribunal, by way of details of purchases and sales covered with these alleged dealings with hawala dealers, details of cheque numbers and payments made during the year under consideration to these alleged hawala dealers , bank statement of the assessee for relevant period , invoices issued by Magnum Enterprises and Niddhish Impex P. Ltd. from whom allegations are there that the assessee obtained bogus accommodation bills, delivery challans, Invoices issued by assessee with respect to material covered by these alleged bogus purchases, Sales Tax/VAT returns, Sales Tax challans etc.. These additional evidences are placed in file. The prayers are made by the assessee that it is due to fault of the Chartered Accountant , his case was not presented properly before the authorities below wherein the assessee was under a bonafide belief and impression that his cases with Income-tax authorities are being properly handled by the Chartered Accountant but in-fact his CA did not handle his cases properly which led to an ex-parte orders passed by authorities below prejudicing assessee. The assessee had filed following letter dated 31.05.2019 before the tribunal along with aforesaid additional evidences , which is reproduced as under:-
7.3 The assessee has thus in nutshell prayed for one more opportunity to explain his case before the authorities below and prayers are made for set aside this matter back to file of the AO for fresh adjudication on merits in accordance with law as both the orders passed by authorities below were exparte orders. It is also stated by assessee that apart from additional evidences filed by the assesse before the tribunal, the assessee will also produce stock records before the authorities below to prove that these purchases made by him from these two alleged Hawala dealers are genuine. Mr. Faisal Farook Vadgama, the assessee appeared in person before the tribunal and made statements before the Bench that if one more opportunity is provided to him , he will duly appear in person or through authorised representative before the AO and explain its case with cogent and credible material/evidences/explanations to substantiate that purchases are genuine and no additions to income are warranted in the hands of the assessee. Thus, in nutshell he stated before the Bench that he will extend co-operation with Revenue in explaining its case before them by filing evidences/explanations in his defence which then can be adjudicated by authorities below on merits in accordance with law. The aforesaid additional evidences filed by assessee before the tribunal for the first time alongwith aforesaid covering letter dated 31.05.2019 filed with tribunal are placed in file. 7.4 The Ld. DR submitted that assessee has not co-operated before the authorities below but fairly submitted that since assessee has now come forward with evidences , matter can be restored to the file of AO for fresh adjudication after verification of these evidences.
We have considered rival contentions and perused the material on record. The assessee is engaged in the business of manufacturing of Engineering Goods. The information was received by AO from DGIT(Inv.) , Mumbai, that the Sales Tax Department has carried out investigation and published a list of parties who provides accommodation bills and list of beneficiaries of these alleged bogus purchases. The assessee was listed as one of beneficiaries of accommodation entries by way of bogus purchases without actual delivery of goods from the following alleged hawala dealers during the previous year relevant to impugned assessment year , the details of which are as under:- Sr. No Name of the Parties Amount in ruppees 1. Niddhish Impex P. Ltd 24,23,208/- 2. Magnum enterprices 63,62,161/- Total 87,85,369/- 8.2 The concluded assessment of the assessee for the impugned assessment year 2010-11 was reopened by the AO u/s 147 of the 1961 Act and notice dated 19.02.2015 u/s 148 of the 1961 Act was issued by the AO against assessee which was claimed by AO to have been duly served on assessee. We are presently concerned with AY 2010-11 and thus notices u/s 148 was issued within four years from the end of assessment year and originally no assessment was framed by AO u/s 143(3) of the 1961 Act. The AO also issued notices to the assessee u/s 143(2) and. 142(1) of the 1961 Act, but there was no appearances on behalf of the assessee before the AO, which led AO to disallow entire alleged bogus purchases wherein AO made additions to the tune of 100% of alleged bogus purchases aggregating to Rs. 87,85,369/- . Thereafter, the assessee filed first appeal with learned CIT(A) but did not appear before learned CIT(A) which led to dismissal of appeal of the assessee. 8.3 The assessee being aggrieved filed second appeal with tribunal and now assessee has come forward and appeared in person before the tribunal. The assessee has claimed that he was under a bonafide impression and belief that his Chartered Accountant is representing his case properly before the authorities below but due to this gap in information/communication between him and his CA, led to additions being made by AO to the tune of disallowance of 100% of bogus purchases which stood added to the income of the assessee by the AO vide reassessment order dated 01.02.2016 passed u/s 143(3) read with Section 147, which additions were later confirmed by Ld. CIT(A) vide appellate order dated 05.12.2017. The assessee has appeared in person before the tribunal and has filed letter dated 31.05.2019 which is reproduced hereunder:-
8.4 The assessee has appeared in person before the tribunal and has also filed large number of additional evidences for the first time before the tribunal, by way of details of purchases from these alleged hawala dealers and consequent sales, details of cheque numbers and payments made during the year under consideration to these alleged hawala dealers , bank statement of the assessee for relevant period , invoices issued by Magnum Enterprises and Niddhish Impex P. Ltd. from whom allegations are there that the assessee obtained bogus accommodation bills, delivery challans, Invoices issued by assessee with respect to material covered by these alleged bogus purchases, Sales Tax/VAT returns, Sales Tax challans , Copy of P&L Account and Balance Sheet etc.. These additional evidences are placed in file. The assessee has also made statement before the Bench that he will duly cooperate with authorities below if this matter is restored to the file of the AO for fresh determination of issues and framing of denovo assessment by the AO. These additional evidences are filed by assessee for the first time before the tribunal and these additional evidences need verification by authorities below as these additional evidences had not stood the scrutiny by lower authorities . Hence in the fitness of the thing keeping in view totality of the circumstances before us, we are inclined to set aside the appellate order passed by learned CIT(A) and restore the matter back to the file of the AO for fresh adjudication on merits in accordance with law for framing denovo reassessment . We would like to clarify that this is an open remand as the assessee has not appeared at all before the authorities below and all the issues which arises or may arise during the course of reassessment proceedings are within the ambit of the open remand ordered by us. Thus, all the issues are kept open. Needless to say that proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principals of natural justice in accordance with law. The assessee will be allowed to file all relevant evidences/explanation before the AO in its defence in set aside proceeding which shall be admitted by AO in the interest of the justice and then adjudicated on merits in accordance with law.We make it clear that we have not commented on the merits of the issue’s in this appeal and the AO shall be free to decide the issues unhindered by any observations by us in this order. The appeal of the assessee stood allowed for statistical purposes. We order accordingly.
In result, appeal of the assessee in AY 2010-11 is allowed for statistical purposes. Order pronounced in the open court on 04.07.2019. आदेश की घोषणा खुऱे न्यायाऱय में ददनांकः 04.07.2019 को की गई Sd/- Sd/- (C.N PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, dated: 04.07.2019