Shri Janardhan Moru Mhatre, Panvel V. ITO (Central), Thane

ITA 1134/PUN/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1210 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 24-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Depreciation; Document seized; Principle of natural justice; Documents seized
• Section: 143(3); 142(1); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , ' # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, A M . / ITA NO.1134/PN/2013 $ % % / ASSESSMENT YEAR : 2003-04 SHRI JANARDHAN MORU MHATRE, PLOT NO.466, MARKET YARD, SAHAKAR NAGAR, PANVEL 410206. . / APPELLANT PAN: AEHPM8108C VS. THE INCOME TAX OFFICER (CENTRAL), THANE. . RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI S.K. RASTOGI, CIT DATE OF HEARING : 09.07.2015 / DATE OF PRONOUNCEMENT: 19.08.2015 & / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-I, THANE, DATED 28.12.2012 RELATING TO ASSESSMENT YEAR 2003-04 PASSED UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME-TAX ACT, 1 961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1) THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FAC TS BY DISMISSING THE APPEAL WITHOUT PROPERLY APPRECIATING THE SECOND PRO VISO OF SECTION 153A, ACCORDING TO WHICH ALL PENDING ASSESSMENT OR REASSE SSMENT FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEAR OF THE SEARCH, SHALL ABATE. 2) THE LEARNED CIT(A) HAS ERRED IN LAW, ON FACTS AN D CIRCUMSTANCE OF THE CASE BY NOT CONSIDERING THE VARIOUS GROUND OF APPEA L AS WELL AS SUBMISSION OF ASSESSEE FILED DURING THE HEARING IN HIS ORDER. ITA NO.1134/PN/2013 SHRI JANARDHAN MORU MHATRE 2 3) THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY DISMISSING APPEAL OF ASSESSEE BY STATING THAT A.O. WHILE PASSING ORDER U /S 153A R.W.S. 143(3) HAS ONLY CONFIRMED THE EARLIER ASSESSMENT ORDER PASSED AND NO ADDITION WAS MADE BY HIM, BUT THE LEARNED CIT(A) FAILED TO APPRE CIATE THAT EARLIER ORDER MERGED IN ORDER PASSED U/S 153A AND GROUNDS OF APPE AL REMAIN SAME SINCE THERE WERE NO FURTHER ADDITION. 4) THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY NOT ALLOWING CARRY FORWARD OF PART DEPRECIATION RS.3,26,205/- WHICH WA S INCLUDED IN RETURN LOSS OF RS.3,26,205/- AND DISALLOWING EXPENSES UNDER DIF FERENT HEAD OF EXPENSES OF RS.23,000/-. 5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE O RDER PASSED BY THE LD. CIT(A) IS BAD BOTH IN EYES OF LAW AND ON FACTS AND ALSO WITHOUT GIVING REASONABLE OPPORTUNITY TO HEARD IN REGARD TO DISMIS SAL OF APPEAL AND AS SUCH ACTED AGAINST PRINCIPLE OF NATURAL JUSTICE. 6) THE ASSESSEE CRAVES LEAVE TO ADD/ ALTER ANY OF G ROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING APPEAL. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHA LF OF THE ASSESSEE AND NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LD. DEPARTMENTAL R EPRESENTATIVE FOR THE REVENUE. 4. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINS T THE ORDER OF THE CIT(A) IN DISMISSING THE APPEAL OF THE ASSESSEE STATING TH AT THE ASSESSING OFFICER WHILE PASSING THE ORDER UNDER SECTION 153A R.W.S. 1 43(3) OF THE ACT HAS ONLY CONFIRMED THE EARLIER ASSESSMENT ORDER PASSED AND N O ADDITION WAS MADE BY HIM. THE ASSESSEE IS ALSO AGGRIEVED BY THE ORDER O F THE CIT(A) IN NOT ALLOWING CARRY FORWARD OF PART DEPRECIATION OF RS.3,26,205/- AND DISALLOWING EXPENSES UNDER DIFFERENT HEADS OF RS.23,000/-. THE ASSESSEE IS ALSO AGGRIEVED BY NON- GRANT OF REASONABLE OPPORTUNITY TO THE ASSESSEE BY THE CIT(A). 5. BRIEFLY, IN THE FACTS OF THE PRESENT CASE, SEARC H AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WERE CARRIED OUT AT TH E PREMISES OF THE ASSESSEE ON 07.02.2008. DURING THE COURSE OF SEARCH, CERTAI N DOCUMENTS WERE SEIZED. THE ASSESSEE WAS ALLOWED TO INSPECT THE SEIZED DOCU MENTS AND COPIES OF THE SEIZED DOCUMENTS AND SWORN STATEMENTS OF THE ASSESS EE AND ITS GROUP MEMBERS/EMPLOYEES WERE ALSO MADE AVAILABLE TO THE A SSESSEE. THEREAFTER, ITA NO.1134/PN/2013 SHRI JANARDHAN MORU MHATRE 3 THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 1 53A OF THE ACT ON 16.06.2008. IN RESPONSE, THE ASSESSEE FURNISHED RE TURN OF INCOME DECLARING LOSS OF RS.3,26,204/-. THE ASSESSING OFFICER ISSUE D NOTICES UNDER SECTION 143(2) AND 142(1) OF THE ACT. THE ASSESSING OFFICE R NOTED THAT IN THE RETURN OF INCOME, THE ASSESSEE HAD SHOWN NET LOSS OF RS.4,20, 138/- FROM THE BUSINESS OF HOTEL & RESTAURANT AT PANVEL UNDER THE NAME OF H OTEL VAIBHAV. THE ASSESSEE FURTHER DECLARED INCOME FROM THE OTHER SOU RCES AT RS.93,934/-. THE AR OF THE ASSESSEE HAD EXPLAINED THAT LOSS FROM HOT EL & RESTAURANT BUSINESS WAS RESULTED FROM DEPRECIATION CLAIM. THE TOTAL IN COME DECLARED BY THE ASSESSEE I.E. LOSS OF RS.3,26,204/- WAS ACCEPTED BY THE ASSESSING OFFICER. 6. THE GRIEVANCE OF THE ASSESSEE BEFORE THE CIT(A) WAS THAT THE ASSESSING OFFICER HAD FAILED TO ALLOW LOSS TO BE CA RRIED FORWARD IN SUBSEQUENT YEAR AND ALSO THE ASSESSING OFFICER HAD DISALLOWED 13,000/- OUT OF MISCELLANEOUS EXPENSES, RS.5,000/- OUT OF GENERAL E XPENSE AND RS.5,000/- OUT OF LAUNDRY EXPENSES. THE CIT(A) NOTED THAT THE ASSESSEE HAD ORIGINALLY FILED THE RETURN OF INCOME DECLARING LOSS OF RS.3,2 6,205/- AND THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT AT A LOSS OF RS.3,03,205/-. FURTHER, PURSUANT TO THE SEARCH ACTION UNDER SECTIO N UNDER SECTION 132 OF THE ACT AND IN REPLY TO THE NOTICE ISSUED UNDER SECTION 153A OF THE ACT, THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING LOSS OF RS.3,26,205/-, WHICH WAS DECLARED IN THE ORIGINAL RETURN OF INCOME. THE CIT (A) NOTED THAT IN THE ASSESSMENT ORDER PASSED UNDER SECTION 153A R.W.S. 1 43(3) OF THE ACT, THE ASSESSING OFFICER HAD NOT MADE ANY ADDITION OR DISA LLOWANCE AND THE RETURNED INCOME / LOSS WAS ACCEPTED AND HENCE NO GROUND OF A PPEAL EMANATES FROM THE SAID ORDER. THE CIT(A) HELD THAT SINCE THE ASS ESSING OFFICER HAS NOT MADE ANY ADDITION VIDE ORDER UNDER SECTION 153A R.W.S. 1 43(3) OF THE ACT, WHICH IS APPEALED AGAINST, THE ASSESSEE COULD NOT HAVE ANY G RIEVANCE AGAINST THE ASSESSMENT ORDER PASSED. SINCE NO GROUND OF APPEAL EMANATED FROM THE ITA NO.1134/PN/2013 SHRI JANARDHAN MORU MHATRE 4 ABOVE ORDER PASSED BY THE ASSESSING OFFICER DATED 3 0.12.2009, THE CIT(A) DISMISSED THE GROUND OF APPEAL RAISED BY THE ASSESS EE AS INFRUCTUOUS. 7. ON PERUSAL OF THE RECORD AND THE ORDERS PASSED B Y THE AUTHORITIES BELOW, WE FIND THAT PURSUANT TO THE SEARCH CARRIED OUT AT THE PREMISES OF THE ASSESSEE, NOTICE UNDER SECTION 153A WAS ISSUED TO T HE ASSESSEE, REQUISITIONING THE ASSESSEE TO FURNISH THE RETURN O F INCOME. IN REPLY, THE ASSESSEE FURNISHED THE RETURN OF INCOME DECLARING L OSS OF RS.3,26,204/-, WHICH IN ENTIRETY WAS ACCEPTED BY THE ASSESSING OFFICER A ND NO FURTHER ADDITION WAS MADE IN THIS REGARD. HOWEVER, THE ASSESSEE HAD PRE FERRED AN APPEAL BEFORE THE CIT(A) OBJECTING TO THE ASSESSING OFFICER IN NO T ALLOWING THE DEPRECIATION LOSS TO BE CARRIED FORWARD IN THE SUBSEQUENT YEAR A ND ALSO AGAINST THE DISALLOWANCE OF CERTAIN EXPENSES. AS POINTED OUT B Y THE CIT(A), SINCE THE ASSESSING OFFICER HAD NOT MADE ANY ADDITION VIDE OR DER UNDER SECTION 153A R.W.S. 143(3) OF THE ACT, WHICH WAS APPEALED AGAINS T, THE ASSESSEE COULD NOT HAVE ANY GRIEVANCE AGAINST THE SAID ASSESSMENT ORDE R. UPHOLDING THE ORDER OF THE CIT(A), WE FIND NO MERIT IN THE GROUNDS OF A PPEAL RAISED BY THE ASSESSEE IN THIS REGARD. FURTHER, THERE IS NO MERI T IN THE ISSUE RAISED BY THE ASSESSEE AGAINST THE DISALLOWANCE OF CERTAIN EXPENS ES AND ALSO NON- ALLOWANCE OF CARRY FORWARD OF PART DEPRECIATION. T HE ASSESSEE HAS FAILED TO ESTABLISH ITS CLAIM AND IN THE ABSENCE OF THE SAME, WE DISMISS THE VARIOUS GROUNDS OF APPEAL RAISED BY THE ASSESSEE AS INFRUCT UOUS. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED ON THIS 19 TH DAY OF AUGUST, 2015. SD/- SD/- ( R.K. PANDA ) ( SUSHMA CHOWLA ) ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 19 TH AUGUST, 2015 . SUJEET ITA NO.1134/PN/2013 SHRI JANARDHAN MORU MHATRE 5 & ' ()*+ ,+) / COPY OF THE ORDER IS FORWARDED TO : THE APPELLANT; THE RESPONDENT; & & ' () THE CIT(A)-I, THANE; & & ' / THE CIT, CENTRAL CIRCLE, PUNE; *+, --./, & ./ , 1 / DR A, ITAT, PUNE; ,23 4 / GUARD FILE. &$ / BY ORDER * - // TRUE COPY // 567 -8 .9 / SR. PRIVATE SECRETARY & ./ ,