INCOME TAX OFFICER- 42(1)(1), MUMBAI, MUMBAI vs. BHAVIK JAYANT GANDHI, KANDIVALI(W), MUMBAI
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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
Before: SHRI ABY T VARKEY, HONBLE & SHRI S. RIFAUR RAHMAN, HONBLE
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “B”, MUMBAI BEFORE SHRI ABY T VARKEY, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO. 2639/MUM/2023 (A.Y. 2010-11) Income tax Officer- 42(1)(1) v. BHAVIK JAYANT GANDHI Room No. 703, 7th Floor D-602, Nisarg CHS Ltd. Kautilya Bhavan, BKC Mahavir Nagar, Kandivali (W) Mumbai - 400051 Mumbai- 400067 PAN: AHZPG2588H (Appellant) (Respondent) None Assessee Represented by : Department Represented by Shri Ashok Kumar Ambastha
Date of Conclusion of Hearing : 27.02.2024 Date of Pronouncement : 29.02.2024
O R D E R PER S. RIFAUR RAHMAN (A.M) 1. This appeal is filed by the revenue against the order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short “Ld. CIT(A)”] dated 14.06.2023 for the A.Y. 2010-11.
ITA NO. 2639/MUM/2023 (A.Y. 2010-11) BHAVIK JAYANT GANDHI 2. Brief facts of the case are, assessee an individual deriving income from business (dealing in chemicals), filed return of income on 24.09.2010 for the A.Y.2010-11 declaring income of ₹.4,13,610/- and the return was processed u/s.143(1) of the Income-tax Act, 1961 (in short “Act”). Subsequently, Assessing Officer received information from the DGIT (Investigation), Mumbai about the accommodation entries provided by various dealers and assessee was also one of the beneficiary from those dealers. The assessment was reopened U/s. 147 of the Act based on the information received from DGIT (Investigation), Mumbai, that the assessee has availed accommodation entries from various dealers who are said to be providing accommodation entries without there being transportation of any goods.
In the reassessment proceedings, the assessee was required to prove the genuineness of the purchases made from the parties as referred in Assessment Order. In response, Assessee furnished purchase bills, delivery challans, details of payments made for the purchases and details of corresponding sales of the goods purchased and submitted the purchases are genuine. Further, he submitted that purchases were genuine as the payments were made through banking channels.
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ITA NO. 2639/MUM/2023 (A.Y. 2010-11) BHAVIK JAYANT GANDHI 4. After considering the submissions of the assessee, Assessing Officer rejected the same and treated the purchases as non-genuine and he was of the opinion that assessee had obtained only accommodation entries without there being any transportation of materials and the assessee might have made purchases in the gray market. Assessing Officer observed that the notices issued u/s. 133(6) of the Act to the parties are returned unserved with a remark “not known” and the assessee has not produced the parties before the Assessing Officer. It is the finding of the Assessing Officer that the assessee failed to produce the parties in support of its claim that purchases are genuinely made from the parties. Therefore, Assessing Officer treated entire purchases of ₹.15,914,124/- made from the alleged parties as non-genuine and completed the assessment on 23.02.2016.
Aggrieved with the above order, assessee preferred appeal before the Ld. CIT(A) and filed the appeal manually on 11.04.2016. Due to technical error on the Income Tax Site, the assessee has e-filed the appeal on 04.01.2019 with condonation of delay. After considering the fresh appeal which is a duplicate appeal once again filed by the assessee, he has disposed off the appeal after condoning the delay observing as under:-
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ITA NO. 2639/MUM/2023 (A.Y. 2010-11) BHAVIK JAYANT GANDHI “5.4 Considering the above facts and the decision of the Hon'ble jurisdictional ITAT, even though the appeal was not e-filed but filed manually as there was some difficulty in e-filing and CBDT has taken due cognizance of such difficulty and extended the time limit vide its circular, and it is seen that the appellant has also filed a manual appeal for the same year on the same issues on 11.04.2016 and the manual appeal filed on 11.04.2014 was accepted and is decided on merits. Therefore this e-appeal filed by the appellant is a duplicate appeal on the same issues for the same A.Y and therefore it has become infructuous and requires no further adjudication. Therefore, no adjudication is being made on the grounds of appeal as the issues have already be dealt with in the manual appeal filed on 11.04.2016 Conclusion: In the result, this duplicate appeal of the assessee is treated as dismissed for statistical purposes. purposes.”
From the above, Ld. CIT(A) has disposed off the duplicate appeal without dealing on merit and observed that the original manual appeal was accepted and decided the issue on merit in the original manual appeal.
Aggrieved, revenue is in appeal before us raising following grounds in its appeal: -
(i). "On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in restricting the addition to 8.57% on account of bogus purchases, without appreciating the fact that the Sales Tax Department, Maharashtra has proved beyond doubt that the parties declared as hawala traders were involved in providing of the accommodation entry of purchases and the assessee was one of the beneficiary of accepting accommodation for the purchases. ' (ii). "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in not appreciating the fact that the assessee
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ITA NO. 2639/MUM/2023 (A.Y. 2010-11) BHAVIK JAYANT GANDHI failed to produce the parties for verification, in spite of opportunity provided by the AO. " (iii). "On the facts and circumstances of the case and in law, the Ld.ClT(A) erred in not appreciating the ratio of the decision of Gujarat High Court in the case of N.K. Proteins Ltd. wherein it was confirmed that in the event of bogus purchases, the addition on the whole of such purchases was required to be made and this particular ratio was confirmed by the Hon'ble Supreme Court in SLP No.CC No. 769 of 2017 dated 1601.2017, by dismissing the SLP of that assessee. (iv). "On the facts and circumstances of the case, the Hon'ble ITAT is requested to entertain this appeal though the tax effect is below the monetary limit prescribed in the CBDT Circular no. 17/2019 dated 08.08.2019 r.w. Circular No. 3/2018 dtd. 11.07.2018 as amended on 20.08.2018 as the case falls in the exception provided in para 10(e) of the said Circular in as much as the addition is based on information received from external sources in the nature of law enforcement agencies, namely, Sales Tax Authorities. ' (v). "The appellant prays that the order of the Ld.CIT(A) on the above grounds be set aside and that of the AO be restored. ' (vi). "The appellant craves leave to amend or alter any ground or add a new ground. '”
Inspite of issue of notice none appeared nor any adjournment was sought. Therefore, we proceed to dispose off this appeal with the assistance of Ld.DR on merits.
At the time of hearing, Ld. DR brought to our notice relevant facts of the case and heavily relied on the order of the Assessing Officer. He prayed that the order of the Ld. CIT(A) may be set-aside.
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ITA NO. 2639/MUM/2023 (A.Y. 2010-11) BHAVIK JAYANT GANDHI 10. Considered the submissions of the Ld. DR and material placed on record, we observe that the revenue has filed the present appeal against the duplicate set appeal filed before Ld. CIT(A). Ld. CIT(A) has decided the issue only on technical ground and observed that the issue with respect to merit was decided on original manual appeal filed before him, which was passed on different appellate order against the appeal filed on 11.04.2016. Therefore, the Ld. CIT(A) has not adjudicated any issue on merits in the impugned order passed on 14.06.2023. Therefore, the appeal filed by the revenue is infructuous and the revenue should have filed appeal against the original appellate order which was disposed off by the Ld. CIT(A). In this appellate order only the pending duplicate appeal was dismissed. There is no prejudice caused to the revenue. Accordingly, present appeal is dismissed.
In the result, appeal filed by the revenue is dismissed.
Order pronounced in the open court on 29th February, 2024.
Sd/- Sd/- (ABY T VARKEY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 29.02.2024 Giridhar, Sr.PS
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ITA NO. 2639/MUM/2023 (A.Y. 2010-11) BHAVIK JAYANT GANDHI Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum
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