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Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
Before: Shri Joginder Singh, & Shri Sanjay Arora
आदेश / O R D E R Per Joginder Singh (Judicial Member) The Revenue is aggrieved by the impugned order dated 03/05/2010 of the ld. First Appellate Authority, Mumbai. The only ground raised in this appeal pertains to rejecting the application u/s 145 of the Act, applied by the Assessing Officer ignoring the deficiencies pointed out by Assessing Officer in purchase bills, failure of the assessee, in not producing the original books of accounts, bills and vouchers, which was a legal obligation to do so and discharged the burden and further shifting the entire burden of the Assessing Officer to justify the estimation of income overlooking the non- cooperation of the assessee during assessment proceedings and further in deleting the addition made by the Assessing Officer.
During hearing of this appeal, the ld. DR, Shri Asghar Zain, asserted that the assessee was non-cooperative before the Assessing Officer and even in spite of repeated asking by the Assessing Officer, did not produce the original books of accounts, bills and vouchers and thus, did not discharge the burden caste upon the assessee. It was further argued that unjustifiably, the ld. First Appellate Authority shifted the entire burden upon the Assessing Officer to justify the estimation of income overlooking the conduct of the assessee, who did not utilize the opportunity provided to it. The ld. DR strongly objected the way, the addition was deleted by the ld. Commissioner of Income Tax (Appeals).
2.1. On the other hand, Shri Rakesh Joshi, ld. counsel for the assessee, defended the conclusion arrived at in the impugned order by contending that the assessee appeared before the Assessing Officer on 24/12/2009 along with books of accounts and original bills and by the time order has already been passed by the Assessing Officer. Deleting the addition by the ld. Commissioner of Income Tax (Appeals) was claimed to be justified. Our attention was invited to the affidavit filed by Shri Nilesh Killawala, who represented the assessee before Assessing Officer.
2.2. We have considered the rival submissions and perused the material available on record. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, we note that, the facts, in brief, are that the assessee is engaged in the business of reseller, importer and exporter of paints, adhesive, machine tools allied products and fabric etc, declared income of Rs.11,59,449/- on 08/11/2007 and filed revised return declaring total income at Rs.12,50,784/- on 13/11/2007. On verification of the purchase bills (photocopies, it was noticed that some of the bills related to various parties were prepared in the same handwriting apparently by one person only). The details of which have been reproduced in assessment order at page-1 onwards. The Assessing Officer asked the assessee to produce the original bills, vouchers for verification but the same were not produced by the assessee, thus, the same were rejected u/s 145 of the Act. Considering the nature of the documents, the same were suspected to be forced/non- genuine, therefore, the income was estimated at the rate of 5% of the turnover and consequent addition was made.
2.4. On appeal before the ld. Commissioner of Income Tax (Appeals), surprisingly, the ld. First Appellate Authority, shifted the onus upon the Assessing Officer, ignoring the factual matrix recorded in the assessment order by contending that if the Assessing Officer was apprehensive of books of accounts, he should have made enquiries before the parties. However, we note that in spite of asking by the Assessing Officer, the assessee neither the produce the original books of accounts, bills/vouchers, etc nor produced confirmation from the parties and ultimately there was no option with the Assessing Officer to frame the assessment. The ld. Commissioner of Income Tax (Appeals), while passing the order has not addressed the objections raised by the Assessing Officer and ignoring the factual matrix granted relief to the assessee. On questioning from the Bench, whether, the assessee produced original books of accounts, vouchers, bills, etc. the ld. counsel for the assessee fairly agreed that original documents were not produced by the assessee during assessment proceedings and merely invited our attention to the affidavit dated 08/06/2012, wherein in para 5, it has been mentioned on 24/12/2009, the assessee appeared before the Assessing Officer along with original documents but by the time order has already been passed. We note that the ld. Assessing Officer passed the order on 29/12/2009 and the affidavit is merely a self serving document and more specifically, when in spite of repeatedly asking by the Assessing Officer, the assessee did not produce the relevant document as is clearly oozing out from para 4.4 and other paras of the assessment order. Without going into much deliberation, in the interest of justice and in view of the principle that no person should be condemned unheard and further by taking recourse to Article 265 of the Constitution of India that the Department is to levy to collect and due taxes and further no grievance is caused to either side, we remand this appeal (as agreed by the ld. counsel for the assessee also) to the file of the ld. Assessing Officer to examine the claim of the assessee and decide afresh in accordance with law. The assessee be given opportunity of being heard with further liberty to furnish evidence, if any, in support of its claim, thus, the appeal of the Revenue is allowed for statistical purposes only.
Finally, the appeal of the Revenue is allowed for statistical purposes only.
This order was pronounced in the open court in the presence of the ld. representative from both sides at the conclusion of the hearing on 10/12/2015