Income Tax Appellate Tribunal - Mumbai
Rajesh Ambalal Shah, Mumbai vs Deputy Commissioner Of Income Tax 3, ... on 19 December, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "D", MUMBAI
BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND
SHRI RAJESH KUMAR, ACCOUNTANT MEMBER
MA No.747/M/2017
(Arising out of ITA No.3626/M/2015)
Assessment Year: 2010-11
Mr. Rajesh Ambalal Shah, Deputy Commissioner of
Prop M/s. Jars Trading Income Tax-III,
Co., Kalyan,
A-504, Sanskardi 2nd Floor, Rani Mansion,
Vs.
Apartment, Murbad Road,
Lal Chowky, Kalyan (W) - 421 301
Agra Road, Kalyan (W)-
421 301
PAN: ANLPS 6347J
(Appellant) (Respondent)
Present for:
Assessee by : Shri Atin Mehta, A.R.
Revenue by : Shri Rajesh Kumar Yadav, D.R.
Date of Hearing : 30.11.2018
Date of Pronouncement : 19.12.2018
ORDER
Per Rajesh Kumar, Accountant Member:
By way of this miscellaneous application the assessee seeks recalling of the order dated 21.06.2017 passed in ITA No.3626/M/2015 Assessment Year: 2010-11.
2. The Ld. A.R. submitted before the Bench that on 13.06.2017 the assessee has moved a request for grant of further time as the assessee has requested the Income Tax Department for cross examination, however, upon perusal of order of the Tribunal it is stated in para 2 at page 2 that neither assessee nor his authorised representative appeared before the MA No.747/M/2017 2 (Arising out of ITA No.3626/M/2015) Mr. Rajesh Ambalal Shah, Prop M/s. Jars Trading Co.
Tribunal nor any application seeking adjournment of hearing was received despite service of notice through RPAD on previous hearing on 04.05.2017. The Ld. A.R. submitted that since the assessee has filed a copy requesting for further grant of time so that the cross examination could be sought from the AO, the proof whereof is attached as Exhibit-2 filed with the MA. The Ld. A.R. also submitted that the appeal of the assessee has been disposed of without hearing the matter on merit thereby causing miscarriage of natural justice and principles of equity. The Ld. A.R. further submitted that in the earlier and succeeding years the case of the assessee under similar set of facts has been restored to the file of the AO, copies whereof were filed before the Bench. The Ld. A.R. submitted that the assessee has a very good case on merit as the purchases from the alleged suppliers stand confirmed by filing confirmations from the suppliers in response to notices issued under section 133(6) of the Act besides filing the affidavit of the suppliers. Therefore the purchases of the assessee are totally genuine and not bogus. The Ld. A.R. prayed that in line with the earlier and succeeding years orders passed in ITA No.2320/M/2017 A.Y. 2009-10 and 2321/M/2017 A.Y. 2011-12 ,the issue be restored to the file of the AO to decide the same in accordance with the decision of the co-ordinate bench of the Tribunal.
3. The Ld. D.R., on the other hand, prayed that the MA be dismissed as the assessee failed to appear on the designated hearing.
MA No.747/M/2017 3 (Arising out of ITA No.3626/M/2015) Mr. Rajesh Ambalal Shah, Prop M/s. Jars Trading Co.
4. After hearing both the parties and perusing the material on record, we find that the case of the assessee was heard ex-parte despite the application of the assessee for grant of time dated 13.06.2017 copy of which is filed as Exhibit 1. We further find that the case of the assessee was disposed as ex-parte without hearing on merit. The perusal of facts on record reveals that the assessee has filed the necessary confirmation bills, vouchers and other evidences qua the purchases made from suppliers. Besides the suppliers have also duly responded and filed the affidavits in response to notices issued under section 133(6) of the Act. Further, under the similar set of facts the co-ordinate bench of the Tribunal in ITA No.2320/M/2017 A.Y. 2009-10 and others vide order dated 11.10.2017 restored the issue to the file of the AO to decide the same afresh after affording the reasonable opportunity of being heard. After perusing the said order, we are of the view that the order passed by the Tribunal needs to be recalled as the same is passed ex-parte without hearing the assessee on merit. Accordingly, we recall our order dated 21.06.2017 and restore the same to the file of the AO for fresh adjudication in accordance with the decision of the co- ordinate bench of the Tribunal in ITA No.2320/M/2017 A.Y. 2009-10 and 2321/M/2017 A.Y. 2011-12 order dated 11.10.2017. Accordingly, the MA of the assessee is allowed. Besides the order of the tribunal dated 21.06.2017 stands amended to the extent that the same is restored to the file of the AO to decide the issue in accordance with the facts and law and after following the order of tribunal for AY 2009-10.
MA No.747/M/2017 4 (Arising out of ITA No.3626/M/2015) Mr. Rajesh Ambalal Shah, Prop M/s. Jars Trading Co.
5. In the result, the miscellaneous application is allowed and appeal is allowed as stated hereinabove for statistical purposes.
Order pronounced in the open court on 19.12.2018.
Sd/- Sd/-
(Mahavir Singh) (Rajesh Kumar)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dated: 19.12.2018.
* Kishore, Sr. P.S.
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The CIT (A) Concerned, Mumbai
The DR Concerned Bench
//True Copy// [
By Order
Dy/Asstt. Registrar, ITAT, Mumbai.