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Income Tax Appellate Tribunal, MUMBAI BENCH “J”, MUMBAI
Before: SHRI C.N. PRASAD, HONBLE & SHRI RAJESH KUMAR, HONBLEShri Prashant Kantilal Lathia Shri Devendra Jain
O R D E R PER C.N. PRASAD (JM) 1. This appeal is filed by the Revenue against the order of the Learned Commissioner of Income Tax (Appeals)-25, Mumbai dated 11.11.2016 for the Assessment Year 2009-10. In its appeal the Revenue challenged the order of the Ld.CIT(A) in estimating the profit at 25% of the purchases which were treated as bogus purchases by the Assessing Officer.
Learned Counsel for the assessee at the outset submits that assessee also preferred an appeal against order of the Ld.CIT(A) in restricting the addition/disallowance to 25% of the bogus purchases by passing an exparte order. Learned Counsel for the assessee submits that (A.Y: 2009-10) Shri Prashant Kantilal Lathia appeal filed by the assessee in ITA.No. 428/Mum/2017 was heard on 22.08.2017 by ‘C’ Bench of the Tribunal and it was indicated by the Hon'ble Bench that since the Ld.CIT(A) passed exparte order the appeal of the assessee will be restored to the Ld.CIT(A) for fresh adjudication after providing adequate opportunity of being heard.
The Ld. DR has no serious objection in sending the cross appeal of the Revenue to the file of the Ld.CIT(A) for fresh adjudication.
Heard rival submissions and we have perused the order of the Coordinate Bench of the Tribunal in assessee’s appeal in ITA.No.428/Mum/2017 dated 22.08.2017. The Coordinate Bench remanded the appeal to the file of the Ld.CIT(A) for fresh adjudication in accordance with law observing as under: -
“2.1 We have considered the rival submissions and perused the material available on record. So far as, is concerned, the assessee is engaged in the business of civil construction, declared income of Rs.41,32,938/-. The Ld, Assessing Officer issued notice u/s 147/148 of the Act to which the assessee contested the reopening. The assessee made bogus purchases from various parties including V.M. Udyog. The parties from whom purchases were made found to be bogus and as per the Revenue, only bogus bills were issued without affecting the delivery of goods. Identical is the situation in the case of Smt. Deepa Prashant Lathia. The evidence on record clearly shows that neither from the assessee nor the Ld. Assessing Officer were present before the Ld. Commissioner of Income Tax (Appeal). As is evident from para-6 of the impugned order, the assessee himself requested vide letter dated 16/04/2015 for early disposal of the appeal, however, on 06/10/2016, the assessee could not appear. Thus, the (A.Y: 2009-10) Shri Prashant Kantilal Lathia impugned orders were passed. Considering the totality of facts and the circumstances narrated before us, we are of the view that as per mandate of Article 265 of Constitution of India only due taxes has to be levied/ collected. Since, no grievance is caused to either side, without going into the merits of the appeals, we deem it appropriate to remand both these appeals to the file of the Ld. Commissioner of Income Tax (Appeal) for fresh adjudication in accordance with law. The assessee be given opportunity of being heard. Since, the assessee could not appear before the First Appellate Authority, for the reasons known to the assessee itself, on the appointed date, both the assessees are directed to appear before the Ld. Commissioner of Income Tax (Appeal) on a mutually pre- decided date. The assessees are directed to approach the office of the First Appellate Authority within one month from the receipt of this order. The Ld. Commissioner of Income Tax (Appeal) is at liberty to dispose of this appeal accordingly either on the same day, if it is convenient, or on a other conveninent date. Both the appeals are allowed for statistical purpose.”
Since the appeal of the assessee is restored to the file of the Ld.CIT(A) the Revenue’s appeal also should go back to the file of the Ld.CIT(A) for fresh adjudication. Thus, we restore the Revenue’s appeal also to the file of the Ld.CIT(A) for fresh adjudication in accordance with law.
In the result appeal of the Revenue is allowed for statistical purpose.
Order pronounced in the open court on the 25th September, 2017.