Income Tax Appellate Tribunal - Mumbai
Juniper Hotels P. Ltd, Mumbai vs Acit (Hq) To Pr Cit -14, Mumbai on 6 September, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "E"
BENCH, MUMBAI
BEFORE SHRI SHAMIM YAHYA, AM
&
SHRI SANDEEP GOSAIN, JM
आयकरअपीलसं./ I.T.A. No. 7308/Mum/2016,
(निर्धारणवर्ा / Assessment Year: 2012-13)
Juniper Hotels Pvt. Ltd. ACIT (HQ) to PR CIT-
Off Western Express बिधम/ 14, Aayakar Bhavan,
Highway, Santacruz(E) , Vs. MK Road, Mumbai
Mumbai
स्थायीले खासं ./जीआइआरसं ./ PAN/GIR No. AAECS6336E
(अपीलाथी/Appellant) : (प्रत्यथी / Respondent)
अपीलाथीकीओरसे/ Appellant by : Shri Sunil Bhandari
प्रत्यथीकीओरसे/Respondentby : Shri V. Justin
सुनवाईकीतारीख/
: 17/08/2017
Date of Hearing
घोषणाकीतारीख / : 06/09/2017
Date of Pronouncement
आदे श / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the assessee is against the order of Commissioner of Income Tax (Appeals)-22, Mumbai dated 05.10.16 for AY 2012-13.
2
I.T.A. No. 7308 /Mum/2016 Juniper Hotels Pvt. Ltd.
As per the brief facts of the case , the return of income for the year under consider was filed by the assessee on 29.11.12 at Rs. 45,65,33,730/ -. The return was processed and subsequently the case was selected for scrutiny and after seeking reply from the assessee and carrying out investigations, assessment order u/s 143(3) of the I.T. Act was passed by the AO thereby making additions of Rs. 82,711/ - on account of bogus purchases.
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 % of the total purchases.
Now before us, the assessee has preferred the present appeal by raising the above grounds.
2. The only ground raised by the assessee is challenging the order of Ld. CIT(A) in partly confirming disallowance on adhoc basis being 12% of purchases of Rs. 82,711/- i.e. 9,925/-. 3
I.T.A. No. 7308 /Mum/2016 Juniper Hotels Pvt. Ltd.
3. At the very outset Ld. AR appearing on behalf of assessee raised the same arguments as were raised by him before Ld. CIT(A). The Ld. AR also drawn our attention to para no. 5.3 of the order of Ld. CIT(A). Ld. AR further submitted that the Ld. CIT(A) has fell in error while restricting the disallowance @ 12% of the total purchases, more particularly when the assessee has already supplied all the documentary evidence in order to support his contentions.
On the contrary, Ld. DR appearing on behalf of revenue relied upon the order passed by revenue.
We have heard the counsels for both the parties and we have also perused the material placed on record as well as the orders passed by revenue authorities. We find that in the order of assessment in para no. 4.3, it is categorically mentioned that the AO has sought specific documents from the assessee and in para no. 4.5, it has been categorically mentioned that assessee has failed to furnished confirmation from the parties that they had actually sold the material to the assessee. In addition, the assessee has also failed to furnish the proof of delivery of material.
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I.T.A. No. 7308 /Mum/2016 Juniper Hotels Pvt. Ltd.
Ld. AR stated at bar that the assessee has tried his level best to call the party from whom the purchases were affected but the said party instead of cooperating with the assessee had threatened to file criminal case for harassment. It was further submitted by Ld. AR that AO had not carried out any investigations or issue notice under the provisions of I.T. Act for calling /summoning the party for carrying out investigation. 4 Be that as it may, considering the facts and circumstances of the present case, we are of the considered view that when once the assessee has already supplied invoices carrying the details of the party from whom the purchases were made then in that eventuality, the AO was required to invoke the relevant provisions of I.T. Act for carrying out necessary investigations. Admittedly in this case, no notices were issued or independent inquiries were conducted by the AO from the party from whom purchases were effected.
Considering the interest of justice, we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction to carry out independent inquiry /investigation including issuing required notices under the relevant provisions 5 I.T.A. No. 7308 /Mum/2016 Juniper Hotels Pvt. Ltd.
of I.T. Act. to the purchaser from whom the purchases were effected and thereafter pass afresh order of assessment. It is needless here to mention that before passing the order of assessment, the AO 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 AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the AO independently in accordance with law.
7. In the net result, the appeal filed by the assessee stands allowed for statistical purposes.
Order pronounced in the open court on 6th Sept., 2017 Sd/- Sd/-
(Shamim Yahya) (Sandeep Gosain)
Accountant Member Judicial Member
मुंबई Mumbai;ददनां कDated : 06.09.2017
Sr.PS. Dhananjay
आदे शकीप्रनिनिनिअग्रे नर्ि/Copy of the Order forwarded to :
1. अपीलाथी/ The Appellant
2. प्रत्यथी/ The Respondent
3. आयकरआयु क्त(अपील) / The CIT(A)
4. आयकरआयु क्त/ CIT- concerned 6 I.T.A. No. 7308 /Mum/2016 Juniper Hotels Pvt. Ltd.
5. दवभागीयप्रदतदनदि, आयकरअपीलीयअदिकरण, मुंबई/ DR, ITAT, Mumbai
6. गार्ड फाईल / Guard File आदे शधिुसधर/ BY ORDER, उि/सहधयकिंजीकधर .
(Dy./Asstt.Registrar) आयकरअिीिीयअनर्करण, मुंबई/ ITAT, Mumbai