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TMI Blog2019 (3) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... s purchases. However, the Tribunal has not adjudicated other grounds taken by the assessee challenging the reopening of assessment u/s 147 r.w.s. 148 even though the assessee has taken specific ground vide ground no.1 and 2 of grounds of appeal filed along with Form No.36. We further noticed that the assessee also challenged violation of principle of natural justice on the ground that addition has been made based on third party statement, without providing opportunity to the assessee to contradict statement of Hawala Operators. Therefore, we are of the considered view that constitutes mistake apparent on record which can be rectified u/s 254(2) of the Act.u/s 254(2) - Miscellaneous application filed by the assessee is allowed. - M.A. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the Act. 4. The Id. CIT(A) admitted in para 6.1 that in the present case no scrutiny assessment u/s 143(3) was made prior to issue of notice u/s 148 of the Act. 5. In para 6.2., the ld.CIT(A) admitted that the re-opening of assessment was made on the basis of information received from the State Sales Tax Department. 6. The ld.CIT(A) upheld the re-opening u/s 147 r.w.s.148 of the Act. The ld.CIT(A) gave relief of 80% by admitting in para 7.24 that the entire purchases from these parties cannot be added as bogus and what needs to be taxed is the profit element in the transaction. Meaning thereby the ld.CIT(A) confirmed profit of ₹ 55,62,404/- i.e.20% of ₹ 2,78, 12,020/-. 7. The assessee challenged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the statement of hawala operators and only shown statement/affidavit and used against the assessee; c) The decision in the case of CIT V/s Ashish International Ltd (ITA No.4299/2009) order dated 22.2.2011 clearly held that the assessee was not given opportunity to cross examine. Therefore, the benefit of this judgment was to be given to the assessee; d) The assessee vide written statement dated 28.2.2018 has submitted true facts and also relied on the various case laws but not incorporated in the Tribunal order and assessee submission is not considered by Honrable ITAT; e) The assessee also paid VAT on purchases but this issue remained to be adjudicated. 12. The assessee submits that the Honb'le Tribunal these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal has not decided the issues raised before it, then u/s 254 (2) of the Act, the Tribunal can recall its order and rehear the matter afresh after giving opportunity to the either party. Hereto exhibit and marked as Annexure- C. iii) The decision of this Hon'ble Tribunal in the case of M/s Dharma Productions Pvt. Ltd., V/s DCIT in MA No.421/Mum/2014 arising out of I.T.A. No.2481/Mum/2013 for the AY 2007-08, order dated 13.2.2015 has recalled the order of Tribunal wherein while deciding the original appeal did not decide the ground No. 2 and hence recalled the order dated 29.10.2014 and again decided the original appeal on merit. The relevant observations and findings of the Tribunal are as under: 2. We heard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee along with order of the Tribunal in ITA No.5588/Mum/2016, dated 28/02/2018, for AY 2009-10. We find that the Tribunal has decided the appeal filed by the assessee on merit and scaled down profit estimated by the Ld. CIT(A) on alleged bogus purchases from 20% to 12.5% by considering arguments advanced by both sides and also by relied upon various decisions of Co-ordinate Bench, where ITAT, Mumbai Bench, in number of cases has taken consistent view to direct the AO to estimate 12.5% profit on alleged bogus purchases. However, the Tribunal has not adjudicated other grounds taken by the assessee challenging the reopening of assessment u/s 147 r.w.s. 148 of the Income Tax Act, 1961 (hereinafter the Act ), even though the assessee has tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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