INCOME TAX OFFICER-25(3)(4), MUMBAI vs. S.R.JEWELS, MUMBAI
What did the Tribunal hold?
The Tribunal found contradictory findings between the AO and the Commissioner (Appeals) regarding the nature of the transaction. Since the assessee did not appear to clarify the factual position, the issue was restored to the AO for fresh adjudication.
What were the facts?
The Assessing Officer (AO) added ₹49,21,400 to the assessee's income, treating it as an accommodation entry of a loan. The Commissioner (Appeals) treated it as bogus purchases of diamonds and restricted the addition to 3% profit.
What were the issues?
The primary issue was the contradictory nature of the transaction as either an accommodation loan or bogus purchase. The lack of clarity from the assessee on the factual position led to the remand.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWAL
Aforesaid appeal by the Revenue is against order dated 14th June 2017, passed by the learned Commissioner (Appeals)–37, Mumbai, for the assessment year 2009–10.
In this appeal, the Revenue has challenged the deletion of addition made of ` 49,21,400 under section 68 of the Income Tax Act, 1961 (for short “the Act”).
2 S.R. Jewels
Brief facts are, on the basis of incriminating material found during the search and seizure operation conducted under section 132 of the Act in case of Bhawarlal Jain Group it was found that the assessee is one of the beneficiaries of accommodation entries provided by a Bhawarlal Jain Group concern, M/s Impex Gems. On the basis of such information, assessment in case of the assessee was re–opened under section 147 of the Act. During the assessment proceedings, on the basis of information available on record, the Assessing Officer found that the assessee has obtained accommodation entry of loans from M/s. Impex Gem amounting to ` 49,21,400. He further found that M/s. Impex Gem was a benami concern of M/s. Bhawarlal Jain. Alleging that the assessee was unable to prove the source of accommodation entry of ` 41,29,400, he added it to the income of the assessee. The assessee challenged the addition before the first appellate authority.
The learned Commissioner (Appeals) after considering the submissions of the assessee that the amount in question represents value of polished diamonds purchased by the assessee, proceeded to treat it as bogus purchase. However, he was of the view that only the profit element embedded in such purchases has to be brought to tax. Thereafter, referring to the benign assessment procedure (BAP)
3 S.R. Jewels Scheme, the learned Commissioner (Appeals) restricted the addition to 3% of the alleged bogus purchases.
When the appeal was called for hearing, no one was present for the assessee. Even, there is no request for adjournment of appeal. In view of the aforesaid, we proceed to dispose off the appeal ex–parte qua the assessee after hearing the learned Departmental Representative.
Heard the learned Departmental Representative and perused the material on record. She submitted that while the Assessing Officer on the basis of information available on record has observed that the assessee has availed accommodation entry of loans amounting to ` 49,21,400, the learned Commissioner (Appeals) on the basis of submissions made by the assessee has treated it as bogus purchases of diamond. She submitted that the fact of purchase of unpolished diamond was not raised before the Assessing Officer. Therefore, she submitted, the matter may be restored to the Assessing Officer for fresh adjudication. On perusal of the facts on record, it is seen that the Assessing Officer on the basis of information available on record has recorded a finding that the assessee has availed accommodation entries by way of loan from M/s. Impex Gems amounting to ` 49,21,400. Whereas, the learned Commissioner (Appeals) on the basis
4 S.R. Jewels of submissions made before him has held that the aforesaid amount represents bogus purchases of unpolished diamonds. No material has been furnished before us to throw light on the contradictory findings of the Departmental Authorities. Even, the assessee has not appeared before us to clarify the factual position as to whether the disputed amount represents accommodation entry of loan or purchase of unpolished diamond. In view of the aforesaid, we are inclined to restore the issue to the Assessing Officer for de novo adjudication after due opportunity of being heard to the assessee.
In the result, Revenue’s appeal is allowed for statistical purposes. Order pronounced in the open Court on 25th May 2018
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