Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, D/“SMC” BENCH, CHENNAI
Before: SHRI CHANDRA POOJARI
आदेश / O R D E R
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
1. This appeal is filed by the assessee, aggrieved by the order of the Learned Commissioner of Income Tax(A)-3, Chennai dated 30.06.2017 pertaining to assessment year 2009-10.
The assessee has raised the following grounds for adjudication.
The order of the Commissioner of Income Tax (Appeals) dated 30.06.2017 is illegal, opposed to facts and liable to be set aside in full.
2. The Commissioner of Income Tax (Appeals) erred in upholding the jurisdiction of the Assessing Officer to re-open the assessment. 3.1 The Commissioner of Income Tax (Appeals) erred in confirming the addition on account of bogus purchases of Rs.5,28,513/-. 3.2 The Commissioner of Income Tax (Appeals) has gone wrong in not adjudicating the appeal in the proper perspective and instead adjudicated on assumptions and presumptions. 3.3 The Commissioner of Income Tax (Appeals) failed to note that all evidences in support of the claim were duly placed before the lower authorities. 3.4 The Commissioner of Income Tax (Appeals) erred in stating that the question of cross examination does not arise as the Appellant is in touch with the seller. This is arbitrary, illegal and amounts to gross violation of the principles of natural justice.
The brief facts of the case are that the assessee is a company and filed a return of income for the assessment year 2009-2010, on 24/09/2009 admitting a total income of `807,335/- and the return was processed u/s 143(1). Subsequently the case was selected for scrutiny by issue of notice u/s 143(2) read with Section 147 of Income Tax Act, 1961. Later the assessment was reopened vide notice u/s.148 of the Act dated 14.10.2015 by recording reasons as follows:-
“The assessee company M/s.Rajmandir Jewellers Pvt Ltd., during the Financial year 2009-10 has taken accommodation entries in the nature of bogus purchases amounting to `5,28,513/- from Shri Gautam Jain & Other Group.”
Consequent to this, the assessee filed a letter on 17.11.2015 stating that the return filed on 24.09.2009 to be treated as return filed in response to notice issued u/s.148 of the Act. Before the ld. Assessing Officer, the assessee objected the reopening of the assessment and also put objection for treating the impugned purchase as bogus purchase.The assessing officer completed the assessment u/s 143(3) by order dated 29/09/2016 assessing the total income at `13,35,868/- and raising a demand of ` 318,516/-. In completing the assessment, the Assessing Officer has made an addition of `5,28,513/- on account of alleged bogus purchase.
Aggrieved by the order of ld. Assessing Officer, the assessee carried the appeal before the Ld.CIT(A) challenging the addition of `5,28,513/- on account of alleged bogus purchase and also contended as follows:-
“That the contention to make an addition of `5,28,513/- on account of alleged bogus purchases is not justified. The seller is duly registered dealer with GST and TIN number and CST No.24220901559.
The assessee has paid 3,28,513/- by cheque No.532181 on 21.01.2009 and Rs.2,00,000 by cheque No.303208 on 02.02.2009.
The appellant has included this purchase of goods in stock and later sold and profit has been duly offered for tax. The same has been sold to Mr.Rakesh Raj and payment has been received by cheque No.255434 dated 15th December, 2008. The assessing officer is relying on a statement recorded from one Mr. Dharmendra Babel wherein he has stated that he has issued dummy sales bill and the appellant has not actually made this purchase. The appellant would like to bring to your kind authority’s notice that an affidavit from Mr. Dharmendra Babel has been filed wherein he clearly states that the statement recorded from him by the Income Tax Department was under pressure and coercion. Such affidavit was filed by such seller on the very next day from the date of the sworn statement.
3. We have also filed letter dated 08.09.2016 (copy enclosed) whereby submitted the following to assessing officer. a) We have genuinely purchased cut and polished diamonds for Rs.528513 on 05.12.2008. b) The seller is duly registered dealer with GST & TIN No. & CST No.24220901559. C) We have paid Rs.328516 by cheque no.532181 on 21.01.2009 and Rs.200000 on cheque no.303208 on 02.02.2009. d) The purchase of goods is included in our stock and later sold and profit is duly offered for tax. e) We are enclosing herewith affidavit from Mr.Dharmendra Kumar Babel wherein Mr. Dharmendra Kumar Babel has clearly explained that the statement recorded from him by the income tax department was under pressure from income tax department. f) We are also enclosing herewith the copy of the mail received from Mr. Dharmendra Kumar Babel enclosing his return of income, bank statement and confirmation. g) Hence we request you to drop the proceedings and oblige. h) In case your kind authority feels that the proceedings cannot be dropped. We request you to allow us cross examination of the person who has made the sworn statement that the purchase is bogus.”
3.1 Ld. CIT(A) agreed with addition made by ld. Assessing Officer on account of bogus purchase of `5,28,513/-. Against the order of Ld.CIT(A), now the assessee is in appeal before us.
I have heard both the parties and perused the material on record. The primary objection raised by the assessee before me is with regard to reopening of assessment and it was raised first time before the Tribunal. In view of this, in the interest of justice I am inclined to remit the issue of re-opening of assessment to the file of Ld.CIT(A) to give finding on the same, thereafter if the issue in relating to addition of `5,28,513/- requires adjudication, he has to decide it on merit. In doing so, Ld.CIT(A) shall give opportunity of cross-examination of the parties, if the third parties statement relied by AO for making the addition. With this observation, I remit this issue to the file of Ld.CIT(A) for fresh consideration.
In the result, the appeal of assessee is partly allowed for statistical purposes. Order pronounced on 01st November, 2017.