M UL DENTPRO P. LTD, MUMBAI V. ASST CIT WD 6(3), MUMBAI

ITA 1131/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78725 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 03-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 07-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JKTLP DH LS SHRI R K SAHU

Judgement Text

M/S MUL DENTPRO PVT. LTD. 1 VK;DJ VIHYH; VF/KDJ.K TH U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI JH JH JH JH FOT; IKY JKO] U;KF;D LNL; ,OA JH UJSUNZ DQEKJ FC YYS;K] YS[KK LNL; DS LE{K FOT; IKY JKO] U;KF;D LNL; ,OA JH UJSUNZ DQEKJ FCYYS ;K] YS[KK LNL; DS LE{K FOT; IKY JKO] U;KF;D LNL; ,OA JH UJSUNZ DQEKJ FCYYS ;K] YS[KK LNL; DS LE{K FOT; IKY JKO] U;KF;D LNL; ,OA JH UJSUNZ DQEKJ FCYYS ;K] YS[KK LNL; DS LE{K BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER VK;DJ VIYH LA[;K /ITA NO.1131/MUM/2011 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR:- 2007-08 M/S MUL DENTPRO PVT. LTD. B-17, WADALA UDYOG BHAWAN, 8, NAIGAON CROSS ROAD, WADALA, MUMBAI 400031. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX WARD 6(3), SIXTH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI PAN: - AAA CM4427A APPELLANT RESPONDENT ASSESSEE BY/ FU/KKZFJRH DH VKSJ LS NONE REVENUE BY/ JKTLP DH VKSJ LS SHRI R.K. SAHU ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) DATED 29.11.2010 FOR A.Y. 2007-08. THE ASSESSEE HAS RAISE D FOLLOWING GROUNDS IN THIS APPEAL:- (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) AND THE ASSESSEE.T COMM. OF INCOME TAX WARD 6(3) (THE A.O. ) HAS ERRED IN ASSESSING THE SHORT TERM CAPITAL GAIN U/S -50 OF TH E ACT AT RS. 91,46,079/- AGAINST THE ACTUAL GAIN OF RS. 65,46,07 9/-. (II) THE LEARNED CIT(A) AND THE AO ERRED IN CONSIDERING THE CONSIDERATION OF RS. 26 LACS AGAINS THE FURNITURE, ETP ETC, SEPAR ATELY WHEN IT WAS DATE OF HEARING 03.04.2014 DATE OF PRONOUNCEMENT 09 .04.2014 M/S MUL DENTPRO PVT. LTD. 2 ALREADY CONSIDERED UNDER MACHINERY AND THE CAPITAL GAIN WAS WORKED OUT. 2. THE ONLY ISSUE ARISES FROM THE GROUNDS RAISED BY THE ASSESSEE IS ADDITION OF SHORT TERM CAPITAL GAIN U/S 50 OF THE INCOME TAX ACT OF RS. 26 LACS. 3. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS REPEATEDLY CALLED UPON FOR HEARING, IT IS TRANSPIRE D FROM THE RECORD THAT REPEATED NOTICES ISSUED TO THE ASSESSE ON THREE OCCASIONS RE CEIVED BACK UNSERVED WITH THE REMARK LEFT. THUS IT IS IMPOSSIBLE TO SERVE T HE ASSESSEE AT THE GIVEN ADDRESS WHEN ALL THREE ATTEMPTS ARE UNSUCCESSFUL. NOTICES W ERE ISSUED TO THE ADDRESS GIVEN BY THE ASSESSEE IN THE APPEAL MEMO, T HEREFORE, NO PURPOSE WILL BE SERVED FOR KEEPING THIS APPEAL PENDING AS N O RESPONSE HAS BEEN RECEIVED BY THE ASSESSSEE DESPITED SEVARAL NOTICES. ACCORDIN GLY WE PROPOSE TO HEAR AND DECIDE THIS APPEAL EX PARTE. 4. THE AO HAS COMPUTED THE SHORT TERM CAPITAL GAIN U/S 50 OF THE INCOME TAX ACT AT RS. 91,46,079/- AGAINST RS. 65,96,079/- DECLARED BY THE ASSESSEE. THE ASSESSEE HAS SHOWN THE CONSOLIDATED SALE PRICE OF RS. 2,50,00,000/- WHEREAS THE AO HELD THAT THE PRICE OF FACTORY BUILD ING ITSELF WAS RS. 2,50,00,000/- AND THE SALE CONSIDERATION RECEIVED O N FURNITUE AND ETP WAS AN ADDITIONAL OF RS. 26 LACS. THE ASSESSEE CHALLENGED THE ACTION OF AO BEFORE CIT(A) AND CONTENDED THAT THE AMOUNT OF RS. 26 LACS WAS IN CLUDED IN THE CONSIDERATIN OF RS. 2,50,00,000/-. THE CIT(A) HAS CONSIDERED THI S CONTENTION OF THE ASSESSEE AND DECIDED THE ISSUE IN PARA 4 AND 4.1 AS UNDER:- 4. I HAVE CAREFULLY CONSIDERED THE ORDER OF THE ASS ESSING OFFICER AND THE SUBMISSION OF THE APPELLANT. REGARDING THE FIRST GR OUND OF APPEAL IT IS SEEN THAT THE SAME HAS BEEN RAISED ON ACCOUNT OF THE FAC T THAT THE -ASSESSING OFFICER COMPUTED THE SHORT TERM CAPITAL GAIN U/S 50 OF THE I.T ACT JN THE CASE OF THE APPELLANT AT RS. 91,46,079/-AS AGAINST RS.6_5,46,079/- DECLARED BY THE APPELLANT. THE MAIN REASON FOR THIS DIFFEREN CE WAS THAT WHEREAS THE APPELLANT HAS CONTENDED THAT THE FACTORY BUILDING, ETP AND THE FURNITURE SOLD M/S MUL DENTPRO PVT. LTD. 3 HAD A CONSOLIDATED SALE PRICE OF RS.2,50,OO,OOO/-, THE ASSESSING OFFICER HELD THAT THE PRICE OF THE FACTORY BUILDING BY ITSE LF WAS RS.2,50,OO,OOO/- AND THE SALE CONSIDERATION RECEIVED ON FURNITURE AN D ETP WAS AN ADDITIONAL 26,00,000/-. DURING THE COURSE OF APPELLATE PROCEED INGS THE APPELLANT HAS STATED THAT THE SALE WAS ON ACCOUNT OF AN AGREEMENT MADE FOR A TOTAL AMOUNT OF RS.321 LACS, THE BREAKUP OF WHICH WAS RS. 45,OO,OOO/-TOWARDS LAND COST, RS.250 LACS, TOWARDS BUILDING, RS.6 LACS TOWARDS MACHINERY AND RS.20,OO,OOO/- TOWARDS FURNITURE.. THE PLANT & MACHINERY WAS SOLD SEPARATELY THROUGH SALE INVOICES 5. WE NOTE THAT THE CIT(A) HAS CONSIDERED THE CONTE NTION OF THE ASSESSEE AND FOUND THAT RS. 26,00,000/- RECEIVED BY THE ASSESSEE TOWARDS MACHINERY AND FUNITURE OVER AND ABOVE RS. 2,50,00,000/- TOWARDS B UILDING. IN THE ABSENCE OF ANY CONTRARY MATERIAL AND REFUTATION ON THE PART OF THE ASSESSEE TO THE FINDING OF FACT GIVEN BY THE AUTHORITIES BELOW, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDERS OF AUTHORITIES BELOW. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E 9-04 -2014 SD/- SD/- ( N.K. BILLAIYA ) ( VIJAY PAL RAO ) ( ACCOUNTANT MEMBER / YS[KK LNL; YS[KK LNL; YS[KK LNL; YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; ) MUMBAI DATED 09-04-2014 SKS SR. P.S, 4 .1. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSING OFFICER IS NOT WRONG IN TAKING THE VALUE OF FURNITURE AND ETP AT RS.26 LACS E XTRA IN ADDITION TO RS.26 LACS DECLARED AS SALE VALUE OF BUILDING. THE DETAIL S OF THE AGREEMENT GIVEN BY THE APPELLANT ITSELF MENTIONS THE PRICES CONCERNED. THE APPELLANT HAS SUBMITTED THE SAME VIDE LETTER ON 26/11/2010. IT IS NOT UNDERSTOOD AS TO WHY THE APPELLANT HAS NOW COME UP WITH THE STATEMENT THAT RS.250 LACS WAS INCLUSIVE OF THE SALE PRICE OF FURNITURE AND ETP. I FIND NO CONTRADICTION IN THE ORDER OF THE ASSESSING OFFICER VIS-A-VIS THE DECLARA TION OF THE APPELLANT. KEEPING IN VIEW THE AGREEMENT FOR SALE THAT HAS BEE N STATED TO HAVE BEEN MADE BY THE APPELLANT WITH THE PURCHASER. IN VIEW O F THIS, I AM NOT INCLINED TO INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER ON THIS ISSUE M/S MUL DENTPRO PVT. LTD. 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, G BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI