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Income Tax Appellate Tribunal, “E”
आदेश / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the assesseeis against the order of Commissioner of Income Tax (Appeals)-37, Mumbai dated 07.07.16 for AY 2009-10 on the grounds mentioned herein below:-
Deepak P. Sheth Disallowance of bogus purchases 1) The learned CIT (A) erred in confirming the addition of Rs.23,36,120 being 12.5% of purchases from following parties treating this as bogus purchases on surmises and conjunctures. Sr.No. Name of supplier Purchases 25% disallowed 1 1 K R C Trading Co. Pvt. Ltd 2,10,87,233 26,35,904 2 Sanjay & Co. 1,722 216 Total 2,10,88,955 2) The learned CIT(A) erred in confirming the addition though; a) the learned ITO has not given for rebuttal thedocument/information received from sales tax department and relied upon by him for making addition. b) The Learned ITO has not allowed cross examination of the supplier whose statement is relied upon by him for making addition. Reopening of Assessment 3) The learned CIT(A) erred in not adjudicating the following groundsraised in the appeal submitted before him: a) The learned ITO erred in reopening the assessment u/s. 147 and issuing notice u/s. 148 of the Income Tax Act, 1961.
Deepak P. Sheth b) The learned ITO erred in reopening the assessment which is earlier completed u/s. 143(3) after verification and examination of all the expenses and Books of Account. c) The learned ITO erred in reopening assessment merely based or information received from sales tax department without forming independent belief with regard to escapement of income. d) The reamed ITO erred in reopening the assessment based on the same primary facts submitted earlier and available with the then ITO and verified at the time of original assessment. The Appellant craves, leave to add to, amend, alter or withdraw any of the above grounds of appeal before or at the time of hearing of the appeal, if necessary.
2. The brief facts of the case are that the assessee is an individual and engaged in the business of trading in shares, securities and F & O activities in the name and style of M/s D. Sheth and Co. The assessment u/s 143(3) was completed on 22.11.11 assessing total income of Rs. 10,37,923/-. Subsequently, the AO on receiving the information from the Deepak P. Sheth DGIT(Inv) as well as Sales Tax Department, Maharashatra that the parties from whom the assessee had made purchases were indulged in issuance of bogus purchase bills i.e. without delivery of actual goods. The AO on the basis of this information reopened the assessment and after carrying inquiries and seeking reply of the assessee passed order of assessment u/s 143(3) r.w.s. 147 of the I.T. Act thereby making additions /disallowance @ 25% of the bogus purchase amount and add it to the total income of the assessee.
Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties partly allowed the appeal of the assessee and restricting the addition @ 12.5% of the total purchases. Now before us, the assessee has preferred the present appeal by raising the above grounds. 4. Although assessee has raised many grounds of appeal but Ld. AR appearing on behalf of the assessee drawn our attention to Ground No. 3 and submitted that Ld. CIT(A) had not adjudicated the specific grounds raised by the assessee challenging the order of reopening.
Deepak P. Sheth 5. We have heard the counsels for both the parties and we have also perused the material placed on record as well as order passed by revenue authorities. From the records, we found that the assessee has raised the specific grounds thereby challenging the reopening of assessment u/s 147 and issuing notice u/s 148 of the I.T. Act before Ld. CIT(A). Although the assessee had objected to the reopening of assessment but the Ld. CIT(A) had not decided the said ground by passing speaking order. Be that as it may, without commenting anything on the merits of the other grounds raised by the assessee, we are of the considered view that the interest of justice would be met in remitting the matter back to the file of Ld. CIT(A) with a direction to adjudicate and decide on merits the specific ground raised by the assessee in challenging the order of reopening the assessment u/s 147 and issuing notice u/s 148 of the I.T. Act 1961 by passing speaking order. It is needless here to mention that before passing the order, the Ld. CIT(A) shall provide sufficient opportunity of hearing to the assessee. Before parting, we may make it clear that our decision to restore the matter back to the file of CIT(A) shall in no way be Deepak P. Sheth construed as having any reflection or expression on the merits of the issue, which shall be adjudicated by the CIT(A) independently in accordance with law. With these directions, this ground raised by the assessee is allowed for statistical purposes.
6. In the net result, the appeal filed by the assesses is allowed for statistical purposes Order pronounced in the open court on 1st Nov, 2017 Sd/- Sd/- (ShamimYahya) (Sandeep Gosain) लेखासदस्य / Accountant Member न्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनांकDated : 01.11.2017 Sr.PS. Dhananjay आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant प्रत्यथी/ The Respondent 2. 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned यवभागीयप्रयतयनयि, आयकरअपीलीयअयिकरण, मुंबई/ DR, ITAT,