VORA BROS, MUMBAI V. ASST CIT CEN CIR 18 & 19, MUMBAI

ITA 1023/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3449 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 15-03-2016
• Assessment Year: 1994-1995
• Appeal Filed On: 06-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Keywords: Search and seizure; Opportunity of being heard; Source of fund; Accommodation entries
• Section: 143(3); 133A; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' F ' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO S . 1023&1024 /MUM/201 3 (ASSESSMENT YEAR S : 1994 - 95 & 1995 - 96 ) M/S. VORA BROS VS. ACIT, CENTRAL CIRCLE - 18 & 19 16/2, PARAS, GULMOHAR CROSS ROAD NO. 4, JVOD SCHEME VILE PARLE (W), MUMBAI 400049 MUMBAI PAN - AABCI4426F APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI VIVEK BATRA DATE OF HEARING: 1 5 .03 .2016 DATE OF PRONOUNCEMENT: 18 .0 3 .2016 O R D E R PER JASON P. BOAZ, A.M . THESE APPEAL S BY THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF THE CIT(A) - 39 , MUM BAI DATED 10.01.2010 FOR ASSESSMENT YEARS 1994 - 95 AND 1995 - 96 . 2 . THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER: - 2.1 A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') WAS CARRIED OUT IN THE VORA GROUP OF CASES ON 24.09.1998. ON THE BASIS OF INFORMATION/EVIDENCE FOUND IN THE COURSE OF SURVEY, SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON PETROCHEMICAL DEALERS/MANUFACTURERS/TRADERS RESULTING IN THE UNEARTHING OF A PETROCHEMICAL SCAM WHEREIN PETROPRODUCTS PROCURED BY QUOTA HOLDERS WERE SOLD IN THE MARKET FOR UNACCOUNTED CASH PREMIUM. IN ORDER TO CAMOUFLAGE SUCH UNACCOUNTED SALES, ACCOMMODATION ENTRIES WERE OBTAINED FROM VARIOUS HAWALA OPERATORS. AS PER THE ASSESSING OFFICER (AO), THE ASSESSEE WAS A PART OF THE GROUP THAT WERE HAWALA OPERATORS, PROVIDING ACCOMMODATION BILLS/ENTRIES ON COMMISSION BASIS WITHOUT ACTUAL RECEIPT OF GOODS. IN THE ITA NO. 1023&1024 / MUM /2013 M/S. VORA BROS 2 FIRST ROUND OF PROCEEDINGS, AFTER COMPLETION OF THE ASSESSMENT UNDER SECTION 144 R.W.S. 147 OF THE ACT VIDE ORDERS DATED 31.03.2003, AND THE ASSESSEES APPEAL S BEING DISMISSED BY THE LEARNED CIT(A), THE ASSESSEE CARRIED THE MATTER IN APPEA L BEFORE THE ITAT, MUMBAI. THE COORDINATE BENCH OF THIS TRIBUNAL IN ITS ORDERS IN ITA NOS. 6282 & 6283/MUM/2005 DATED 04.12.2008 SET ASIDE THE ORDERS OF THE LEARNED CIT(A) AND DIRECTED THE AO TO RE - EXAMINE THE ISSUES AND RE - DO THE ASSESSMENT AFTER AFFORDIN G THE ASSESSEE REASONABLE OPPORTUNITY OF BEING HEARD. 2.2 IN THE SECOND ROUND, THE LEARNED CIT(A) RECORDS THAT THOUGH SEVERAL OPPORTUNITIES WERE AFFORDED TO THE ASSESSEE BY THE AO, NO PROPER DETAILS/ EXPLANATIONS WERE FURNISHED BY THE ASSESSEE. IT WAS OBSE RVED THAT ONE OF THE PARTNERS, SRI NITIN VORA, HAD ATTENDED BEFORE THE AO AND FURNISHED AN AFFIDAVIT STATING THAT ALL RELEVANT DOCUMENTS WERE LOST DURING THE HEAVY RAINS IN THE YEAR 2005 - 06. THE AO THEN COMPLETED THE ASSESSMENTS FOR ASSESSMENT YEARS 1994 - 9 5 AND 1995 - 96 UNDER SECTION 143(3) R.W.S. 254 OF THE ACT VIDE ORDERS DATED 20.11.2009 WHEREIN THE ASSESSEES INCOME WAS DETERMINED AT ` 6,72,840/ - FOR BOTH THE ASSESSMENT YEARS. 2.3 AGGRIEVED BY THE ORDERS OF ASSESSMENT FOR ASSESSMENT YEARS 1994 - 95 AND 1995 - 96 DATED 20.11.2009, THE ASSESSEE PREFERRED APPEALS BEFORE THE CIT(A) - 39, MUMBAI. THE LEARNED CIT(A) DISMISSED BOTH THE ASSESSEES APPEALS VIDE THE IMPUGNED ORDERS DATED 04.12.2012. 3.1 AGGRIEVED BY THE ORDERS OF THE CIT(A) - 39, MUMBAI FOR ASSESSMENT YEARS 1994 - 95 & 1995 - 96 BOTH DATED 04.12.2012, THE ASSESSEE HAS PREFERRED THESE APPEALS RAISING THE FOLLOWING GROUNDS: - FOR A.Y. 1994 - 95 1. THE LEARNED CIT APPEAL ERRED IN PASSING ORDER EXPARTE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN DISALLOWING COMMISSION PAID OF RS.47,840/ - . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER I N ASSESSING DEPOSIT OF RS.6,25,000/ - . 4. THE ASSESSING OFFICER ERRED IN CHARGING VARIOUS INTEREST. ITA NO. 1023&1024 / MUM /2013 M/S. VORA BROS 3 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. FOR A.Y. 1995 - 96 1. THE LEARNED CIT APPEAL ERRED IN PASSING ORDER EXPARTE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN DISALLOWING COMMISSION PAID OF RS. 1,46,880 / - . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN ASSESSING DEPOSIT OF RS. 5,35,991 / - . 4. THE ASSESSING OFFICER ERRED IN CHARGING VARIOUS INTEREST. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 3.2 THIS CASE WAS FIXED FOR HEARING ON AT LEAST TEN OCCASIONS. WHENEVER THE BENCH DID NOT FUNCTION, THE SAME WAS ADJOURNED THROUGH THE NOTICE BOARD. ON THE DAYS BENCH FUNCTIONED, NEITHER WAS ANYONE PRESENT FOR THE ASSESSEE NOR WAS ANY ADJOURNMENT APPLICATION FILED. EVEN NOTICE FOR HEARING SENT BY RPAD WAS RETURNED. TODAY, I.E. 15.03.2016, WHEN THIS CASE WAS CALLED FOR HEARING NONE WAS PRESENT FOR THE ASSESSEE, BUT THE LEARNED D.R. WAS PRESENT FOR REVENUE. IN THESE CIRCUMSTAN CES, WE ARE OF THE OPINION THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THESE APPEALS SERIOUSLY AND THEREFORE PROCEED TO DISPOSE OFF THESE APPEALS WITH THE HELP OF THE LEARNED D.R. FOR REVENUE AND THE MATERIAL ON RECORD. 3.3 WE HAVE HEARD THE LEARNED D. R. AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD, INCLUDING THE ORDERS OF THE AUTHORITIES BELOW. IT APPEARS, ON A PERUSAL THEREOF THAT, BOTH IN THE SECOND ROUND OF ASSESSMENT PROCEEDINGS BEFORE THE AO AND SUBSEQUENTLY ALSO BEFORE THE LEARNED CIT(A), THE ASSESSEE INSPITE OF BEING AFFORDED SEVERAL OPPORTUNITIES , HAD NOT APPEARED BEFORE THE AO AND/OR HAD NOT FURNISHED DETAILS/EXPLANATION CALLED FOR. THE LEARNED CIT(A) HAS DISPOSED OFF THE ASSESSEES APPEALS HOLDING AS UNDER: - 3.3.1 FOR A.Y. 1994 - 95 3. THE A.O HAD ORIGINALLY COMPLETED THE ASSESSMENT BUT SUBSEQUENTLY THE HON'BLE ITAT A BENCH, MUMBAI VIDE ITS ORDER NO. ITA NO. 6282 & 6283/M/05 DATED 4.12.2008 HAD SET ASIDE THE ORDER AND DIRECTED THE A.O TO REEXAMINE THE MATTER, AFFORDING REA SONABLE OPPORTUNITY TO THE ASSESSEE. ITA NO. 1023&1024 / MUM /2013 M/S. VORA BROS 4 4. IT IS OBSERVED FROM PARAGRAPHS 5 TO 6 OF THE ASSESSMENT ORDER THAT NUMBER OF OPPORTUNITIES WERE GRANTED TO FURNISH THE FOLLOWING DETAILS/ EXPLANATIONS: ( I ) CONFIRMATION/ EVIDENCE FROM PARTY CONCERNED FOR DEPOSIT OF RS. 6 ,25,000 / - . ( II ) SOURCE OF FUNDS DEPOSITED IN M/S. SATARA SAHAKARI BANK LTD., ( III ) DETAILS OF COMMISSION PAID OF RS. 47,840 / - 4.1 THOUGH SEVERAL OPPORTUNITIES WERE GRANTED, NO MEANINGFUL DETAILS/ EXPLANATION WERE PRODUCED BEFORE THE A.O. THE A.O HAD STATED THAT ONE OF THE PARTNERS, SHRI NITIN VORA, HAD ATTENDED AND FURNISHED AN AFFIDAVIT STATING THAT ALL DOCUMENTS WERE LOST DURING THE HEAVY RAINS IN THE YEAR 2005 - 06. IN THE ABSENCE OF ANY DETAILS, THE A.O COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCOME AT RS. 6 , 72,840 / - . THE APPELLANT HAS FILED AN APPEAL AGAINST THE SAID ASSESSMENT BEFORE THE CIT(A) RAISING THE FOLLOWING GROUNDS OF APPEAL: - '1) THE LEARNED ASSESSING OFFICER ERRED IN ASSESSING TOTAL INCOME RS. 6, 72,84 0/ - 2 ) THE LEARNED ASSESSING OFFICER ERRED IN DISALLOWING COMMISSION PAID OF RS. 47,840/ - . 3 ) THE LEARNED ASSESSING OFFICER ERRED IN ASSESSING DEPOSITS OF RS. 6,25,000 / - . 5. THE CASE WAS POSTED FOR HEARING ON SEVERAL OCCASIONS BUT NONE ATTENDED. LATELY, THE CASE WAS POSTED TO 5 JULY, 2012 AND THEREAFTER TO 07.11.2012 AND 04.12.2012. ALL THE NOTICES WERE SERVED ON THE APPELLANT. IT IS SEEN FROM THE RECORDS THAT ON 28.02.2011, THE APPELLANT HAD FURNISHED WRITTEN SUBMISSIONS STATING THAT T HE DEPOSIT OF RS. 6,26,000 / - REPRESENT CHEQUES RECEIVED FROM VARIOUS PARTIES TOTALING RS. 6,26,000 / - TO WHOM CASH WAS RETURNED AFTER CHARGING COMMISSION. BUT THE SAID DETAILS WERE NEVER FURNISHED BEFORE THE A.0 LAND HENCE WITHOUT ANY ENQUIRY HAVING BEEN CO NDUCTED TO ASCERTAIN THE VERACITY OF THE SAME, THE SAID EXPLANATION CANNOT BE ACCEPTED. HENCE I DECLINE TO INTERFERE WITH THE ASSESSMENT AS MADE BY THE A.O. DESPITE OPPORTUNITIES GRANTED, NEITHER ANY PLEADINGS HAVE BEEN FILED, NOR ANY APPEARANCE, MUCH LESS FURNISHING OF ANY MATERIAL TO EXPLAIN AND SUBSTANTIATE THE GROUNDS RAISED. UNDER THE CIRCUMSTANCES THE ADDITION/DISALLOWANCES AS MADE, STAND CONFIRMED. 6. IN THE RESULT, THE APPEAL IS DISMISSED . 3.3.2 FOR A.Y. 1995 - 96 THE LEARNED CIT(A) HELD AS UNDER: - 3. THE A.O HAD ORIGINALLY COMPLETED THE ASSESSMENT BUT SUBSEQUENTLY THE HON'BLE ITAT A BENCH, MUMBAI VIDE ITS ORDER NO. ITA NO. 6282 & 6283/M/05 DATED 4.12.2008 HAD SET ASIDE THE ORDER AND DIRECTED THE A.O TO REEXAMINE THE MATTER, AFFORDING REAS ONABLE OPPORTUNITY TO THE ASSESSEE. 4. IT IS OBSERVED FROM PARAGRAPHS 5 TO 6 OF THE ASSESSMENT ORDER THAT NUMBER OF OPPORTUNITIES WERE GRANTED TO FURNISH THE FOLLOWING DETAILS/ EXPLANATIONS: ITA NO. 1023&1024 / MUM /2013 M/S. VORA BROS 5 ( IV ) CONFIRMATION/ EVIDENCE FROM PARTY CONCERNED FOR DEPOSIT OF RS. 5, 35,991/ - . ( V ) SOURCE OF FUNDS DEPOSITED IN M/S. SATARA SAHAKARI BANK LTD., ( VI ) DETAILS OF COMMISSION PAID OF RS. 1,46,880/ - 4.1 THOUGH SEVERAL OPPORTUNITIES WERE GRANTED, NO MEANINGFUL DETAILS/ EXPLANATION WERE PRODUCED BEFORE THE A.O. THE A.O HAD STATED THAT ONE OF THE PARTNERS, SHRI NITIN VORA, HAD ATTENDED AND FURNISHED AN AFFIDAVIT STATING THAT ALL DOCUMENTS WERE LOST DURING THE HEAVY RAINS IN THE YEAR 2005 - 06. IN THE ABSENCE OF ANY DETAILS, THE A.O COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCOME AT RS. 6 ,82,870/ - . THE APPELLANT HAS FILED AN APPEAL AGAINST THE SAID ASSESSMENT BEFORE THE CIT(A) RAISING THE FOLLOWING GROUNDS OF APPEAL: - '1) THE LEARNED ASSESSING OFFICER ERRED IN ASSESSING TOTAL INCOME RS. 6,82,870/ - 4 ) THE LEARNED ASSESSING OFFICER ERRED IN DISALLOWING COMMISSION PAID OF RS. 1,46,880/ - . 5 ) THE LEARNED ASSESSING OFFICER ERRED IN ASSESSING DEPOSITS OF RS. 5.35.991/ - . 5. THE CASE WAS POSTED FOR HEARING ON SEVERAL OCCASIONS BUT NONE ATTENDED. LATELY, T HE CASE WAS POSTED TO 5 JULY, 2012 AND THEREAFTER TO 07.11.2012 AND 04.12.2012. ALL THE NOTICES WERE SERVED ON THE APPELLANT. IT IS SEEN FROM THE RECORDS THAT ON 28.02.2011, THE APPELLANT HAD FURNISHED WRITTEN SUBMISSIONS STATING THAT THE DEPOSIT OF RS. 5, 35,991/ - REPRESENT CHEQUES RECEIVED FROM VARIOUS PARTIES TOTALING RS. 5,35,991/ - TO WHOM CASH WAS RETURNED AFTER CHARGING COMMISSION. BUT THE SAID DETAILS WERE NEVER FURNISHED BEFORE THE A.0 LAND HENCE WITHOUT ANY ENQUIRY HAVING BEEN CONDUCTED TO ASCERTAIN THE VERACITY OF THE SAME, THE SAID EXPLANATION CANNOT BE ACCEPTED. HENCE I DECLINE TO INTERFERE WITH THE ASSESSMENT AS MADE BY THE A.O. DESPITE OPPORTUNITIES GRANTED, NEITHER ANY PLEADINGS HAVE BEEN FILED, NOR ANY APPEARANCE, MUCH LESS FURNISHING OF ANY MATERIAL TO EXPLAIN AND SUBSTANTIATE THE GROUNDS RAISED. UNDER THE CIRCUMSTANCES THE ADDITION/DISALLOWANCES AS MADE, STAND CONFIRMED. 3.4.1 AFTER CONSIDERING THE SUBMISSIONS MADE BY THE LEARNED D.R. FOR REVENUE AND THE MATERIAL ON RECORD, INCLUDING THE ORIGINAL ORDERS OF ASSESSMENT FOR ASSESSMENT YEARS 1994 - 95 AND 1995 - 96 DATED 31.03.2003, THE ORDERS OF ASSESSMENT FOR THESE YEARS PASSED UNDER SECTION 143(3) R.W.S. 254 OF THE ACT VIDE ORDERS DATED 20.11.2009 AND THE IMPUGNED ORDERS OF THE LEARNED CIT(A), WE FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO REBUT OR CONTROVERT THE FINDINGS OF THE AO ON BOTH THE ISSUES OF (I) DISALLOWANCE OF COMMISSION PAYMENTS AND (II) IN RESPECT OF ADDITION S I N RESPECT OF UNEXPLAINED DEPOSITS MADE IN A/C NO. 2171, SATARA SAHAKARI BANK, MANDAVI BRANCH, MUMBAI. IN THE ABSENCE OF ANY MATERIAL EVIDENCE BEING ITA NO. 1023&1024 / MUM /2013 M/S. VORA BROS 6 BROUGHT ON RECORD TO CONTROVERT THE FINDINGS OF THE AO, WE DO NOT FIND ANY REASON TO DEVIATE FROM OR INTERFERE WITH THE FINDINGS AS RECORDED BY THE AUTHORITIES BELOW AND ACCORDINGLY THE SAME ARE CONFIRMED. CONSEQUENTLY, THE GROUNDS RAISED AT S.NOS. 1 TO 5 IN BOTH THE APPEALS FOR ASSESSMENT YEARS 1994 - 95 AND 1995 - 96 ARE DISMISSED. 4 . IN THE RESULT, ASSESSEES APPEAL S FOR ASSESSMENT YEARS 1994 - 95 AND 1995 - 96 ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MARCH, 2016 . SD/ - SD/ - ( SANDEEP GOSAIN ) ( JASON P. BOAZ ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 16 TH MARCH, 2016 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 39 , MUMBAI 4 . THE CIT CENTRAL II , MUMBAI 5 . THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.