UNNIKRISHNAN N. NAIR, MUMBAI V. ITO WD 24(3)(4), MUMBAI

ITA 1153/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4054 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 01-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 20-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR
• Keywords: Condonation of delay
• Section: 143(3)

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. 1153 /MUM/201 4 (ASSESSMENT YEAR: 2006 - 07 ) SHRI UNNIKRISHNAN N. NAIR VS. INCOME TAX OFFICER - 24(3)(4 ) B - 102, GALAXY CLASSIQUE MITHA NAGAR, GOREGAON (W) MUMBAI 400062 PRATHYAKSHKAR BHAVAN BANDRA KURLA COMPLEX MUMBAI 4000 51 PAN - ADIPN9136H APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI SUMIT KUMAR DATE OF HEARING: 12 .04 .2016 DATE OF PRONOUNCEMENT: 22 .0 4 .2016 O R D E R PER JASON P. BOAZ, A.M . THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 34 , MUMBAI DATED 11 . 12.2013 UPHOLDING THE LEVY OF PENALTY OF ` 6,79,550/ - UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') IN A.Y. 2006 - 07. 2 . INSPITE OF VARIOUS OPPORTUNITIES OF HEARING BEING AFFORDED TO THE ASSESSEE, NEITHER ANYONE APPEARED ON BEHALF OF THE ASSESSEE NOR WAS ANY ADJOURNMENT APPLICATION FILED BY THE ASSESSEE. WHEN THE BENCH DID NOT FUNCTION, THE CASE WAS ADJOURNED THROUGH DISPLAY OF FRESH DATE OF HEARING IN THE NOTICE BOARD. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS NOT INTERESTED IN SERIOUSLY PURSUING THIS AP PEAL AND THEREFORE PROCEED TO DISPOSE OF THIS APPEAL WITH THE ASSISTANCE OF THE LEARNED D.R. FOR REVENUE AND THE MATERIAL ON RECORD. 3 . ORDER ON PETITION FOR CONDONATION OF DELAY IN FILING THIS APPEAL FOR A.Y. 2006 - 07 ITA 1153/MUM/2014 SHRI UNNIKRISHNAN N. NAIR 2 3 .1 PURSUANT TO A DEFECT MEMO ISSUED BY T HE REGISTRY, THE ASSESSEE FILED AN APPLICATION FOR CONDONATION OF DELAY OF SIX DAYS IN FILING THE APPEAL WHICH IS IN THE FORM OF AN AFFIDAVIT DATED 15.06.2015 SWORN TO BY THE ASSESSEE. IT IS, INTER ALIA, SUBMITTED THAT THE DELAY OF SIX DAYS IN FILING THE A PPEAL WAS DUE TO THE FACT THAT IT WAS ONLY ON RECEIPT OF THE IMPUGNED ORDER OF THE LEARNED CIT(A) CONFIRMING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT THAT IT WAS KNOWN TO THE ASSESSEE THAT THE ERSTWHILE ADVOCATE, M/S. RAUT & ASSOCIATES, OF TH E ASSESSEE HAD NOT APPEARED BEFORE THE LEARNED CIT(A) LEADING TO THE ASSESSEES APPEAL BEING DISMISSED. IT IS SUBMITTED BY THE ASSESSEE THAT THE SUBSEQUENT SEARCH FOR A NEW LEGAL REPRESENTATIVE TO TAKE UP HIS APPEAL/CASE LED TO THE DELAY OF SIX DAYS IN FIL ING THIS APPEAL BEFORE THE TRIBUNAL. IT IS PRAYED THAT SINCE THE SAID DELAY WAS NEITHER DELIBERATE NOR WITH MALICIOUS INTENTION THE DELAY OF 6 DAYS IN FILING THIS APPEAL BE CONDONED. IN THIS REGARD THE ASSESSEE PLACED RELIANCE ON THE DECISION IN THE CASE O F ANGELA J. KAZI VS. INCOME TAX OFFICER (2006) 10SOT 139. 3 .2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. ON AN APPRECIATION OF THE SUBMISSIONS MADE BY THE ASSESSEE IN HIS AFFIDAVIT FOR CONDONATION OF DE LAY OF SIX DAYS DATED 15.06.2015, AND THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE MEAGRE DELAY OF SIX DAYS IN FILING THIS APPEAL IS NEITHER DELIBERATE NOR INTENTIONAL BUT FOR THE REASONS CITED IN THE AFFIDAVIT DATED 16.0 5.2015. FOLLOWING THE PRINCIPLES LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST KATIJI & OTHERS (167 ITR 471) (SC) WE ARE OF THE VIEW THAT THIS IS A FIT CASE FOR CONDONATION OF DELAY OF SIX DAYS IN FILING THE APPEAL FOR A.Y. 2006 - 07 BEFORE THE TRIBUNAL AND ACCORDINGLY CONDONE THE SAME AND CONSEQUENTLY ADMIT THE APPEAL FOR ADJUDICATION. 4 . ASSESSEES APPEAL IN ITA NO. 1153/MUM/2014 FOR A.Y. 2006 - 07 4 .1 IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUND: - OBJE CTION AGAINST THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT FOR AN AMOUNT OF RS.6,79,550/ - AS THE APPELLANT HAS NEVER FURNISHED ANY INACCURATE PARTICULARS OF INCOME AND HAS NOT CONCEALED ANY INCOME. ITA 1153/MUM/2014 SHRI UNNIKRISHNAN N. NAIR 3 4.2 THE LEARNED CIT(A) IN THE IMPUGNED ORDER HAS CONSIDERED THE ASSESSEES SUBMISSIONS AND DISPOSED/CONFIRMED THE PENALTY OF ` 6,79,550/ - FOR A.Y. 2006 - 07 AS UNDER AT PARAS 6 & 7 OF HIS ORDER: - 6. THE APPELLANT IN THE STATEMENT OF FACTS FILED ALONG WITH FORM NO.35 HAS SUBMITTED AS UNDER: - 1. THE ASSESSEE WAS ASSESSED U/S. 143(3) OF THE INCOME TAX ACT, 1961 FOR THE CAPTIONED ASSESSMENT YEAR. 2 . DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE LD.AO OBSERVED DIFFERENCE OF R.35,20,536/ - BETWEEN TDS CERTIFI CATES ATTACHED ALONG WITH INCOME TAX RETURN AND ACTUAL TURNOVER OF THE ASSESSEE SHOWN IN PROFIT AND LOSS ACCOUNT, THE ASSESSEE BROUGHT TO THE NOTICE OF THE LD.AO OF ARITHMETICAL MISTAKES AND DOUBLE ENTRIES AND TEMPORARY LOAN AMOUNT PAID BY THE MAHINDRA & M AHINDRA LTD. TO THE ASSESSEE AS NORMAL COURSE OF BUSINESS, AFTER ACCEPTING SAID MISTAKES. THE LD.AO ALLOWED DEDUCTION FOR ARITHMETICAL MISTAKE AND DOUBLE ENTRIES OF ` 15,45,299/ - MADE BY MAHINDRA & MAHINDRA LTD., DIFFERENCE WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE TO THE TUNE OF ` 19,75,237/ - WHILE MAKING THE ASSESSMENT U/S. 143(3) OF INCOME TAX ACT. 3 . IN THE MEANTIME THE APPELLANT HAS BOUGHT TO THE NOTICE TO THE LD.AO THAT CERTAIN AMOUNT WAS PAID AS ADVANCE AS TEMPORARY LOAN BY THE MAHINDRA & MAHINDRA LTD. WHICH IS REPAYABLE WITHIN SHORT PERIOD OR DURING THE COURSE OF BUSINESS OUT OF LOAN AMOUNT RECEIVED BY THE ASSESSEE. PART OF AMOUNT HAS ALREADY BEEN REPAID BY THE ASSESSEE. 4 . IN MEANTIME THE APPELLANT HAS ASKED FOR SOME TIME TO SUBMIT THE CONFIRMATION OR ACCOUNT STATEMENT FROM MAHINDRA & MAHINDRA LTD. AS DUE TO SLACK IN AUTO INDUSTRIES, THE COMPANY HAS BEEN CLOSED MOST OF THE TIME FOR THE REASON BEST KNOWN TO THEM. AND THE LEARNED ASSESSING OFFICER WITHOUT WAITING FOR THE SUBMISSION OF CONFIRMATION FROM ASSESSEE, THE LD.AO HAS MADE ADDITION OF DIFFERENCE ON HIS WRONG NOTION THAT EXPLANATION IS ACCEPTABLE, EVEN AFTER ENTRIES AND BANK STATEMENTS SUBMITTED TO HIM. 5 . THE EXPLANATION GIVEN BY THE APPELLANT WAS NOT ACCEPTED BY THE LD.AO THAT THE ASSESSEE FAILED TO SUBSTANTIATE ITS EXPLANATION OR ITS EXPLANATION WAS NOT BONAFIDE OR IT FAILED TO DISCLOSE ALL MATERIAL FACTS. 7. I HAVE GONE THROUGH THE IMPUGNED PENALTY ORDER AND THE SUBMISSIONS AS ABOVE. IT IS EVIDENT THAT THE APPELLANT HAS NOT SHOWN CERTAIN CONTRACT RECEIPTS AMOUNTING TO ` 19,75,237/ - AND THEREBY SUPPRESSED ITS INCOME IN ORDER TO EVADE TAX EVEN AFTER CLAIMING THE ENTIRE TAX BY WAY OF TDS AGAINST THE INCOME IN THE ABSENCE OF ANY EXPLANATION/RECONCILIATION, THE CONTRACT RECEIPTS AMOUNTING TO ITA 1153/MUM/2014 SHRI UNNIKRISHNAN N. NAIR 4 ` 19,75,237/ - WHICH WERE NOT SHOWN IN THE ACCOUNTS HAS BEEN ADDED TO THE TOTAL INCOME AND LEVIED THE PENALTY U/S.271(1)(C) OF THE I.T. ACT. DURING THE COURSE OF APPELLATE PROCEEDINGS ALSO, INSPITE OF SEVERAL OPPORTUNITIES GIVEN, THE APPELLANT HAD FAILED TO F ILE ANY EXPLANATION/RECONCILIATION TO SUBSTANTIATE HIS CLAIM. IN VIEW OF THE ABOVE, I AGREE WITH THE ASSESSING OFFICER THAT THIS IS A FIT CASE FOR LEVY OF PENALTY U/S. 271(1)(C) OF THE LT. ACT AND HENCE THE ORDER OF THE ASSESSING OFFICER IS CONFIRMED. 4. 3.1 THE LEARNED D.R. WAS HEARD IN THE MATTER IN SUPPORT OF THE IMPUGNED ORDER OF THE LEARNED CIT(A) DISMISSING THE ASSESSEES APPEAL AND IN CONFIRMING THE LEVY OF PENALTY OF ` 6,79,550/ - UNDER SECTION 271(1)(C) OF THE ACT FOR A.Y. 2006 - 07. THE LEARNED D.R. ALSO SUBMITTED THAT THE ASSESSEE FAILED TO APPEAR/ATTEND BEFORE THE LEARNED CIT(A) IN THE 12 HEARING OPPORTUNITIES AFFORDED BY THE LEARNED CIT(A) IN THE COURSE OF APPELLATE PROCEEDINGS AND THEREFORE THE LEARNED CIT(A) WAS CONSTRAINED TO PASS THE IMPUGNED O RDER EXPARTE ON THE BASIS OF MATERIAL ON RECORD. 4.3.2 WE HAVE HEARD THE LEARNED D.R. FOR REVENUE AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. AFTER CONSIDERING THE SUBMISSIONS OF THE LEARNED D.R. AND ALSO THE FINDINGS IN THE IMPUGNED ORDER AND IN THE ORDER OF OTHER AUTHORITIES BELOW, WE FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO BRING ON RECORD ANY MATERIAL TO CONTROVERT THE FINDINGS OF THE ASSESSING OFFICER IN THE ORDER DATED 23.06.2009 LEVYING THE SAID PENALTY OF ` 6,79,550/ - UNDER SECTIO N 271(1)(C) OF THE ACT AND OF THE LEARNED CIT(A) IN THE IMPUGNED ORDER ON MERITS. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY REASON TO DEVIATE FROM OR INTERFERE WITH THE FINDINGS RECORDED BY THE AUTHORITIES BELOW AND ACCORDINGLY CONFIRM THE IMPUGNED OF THE LEARNED CIT(A) IN UPHOLDING THE LEVY OF PENALTY OF ` 6,79,550/ - UNDER SECTION 271(1)(C) OF THE ACT FOR A.Y. 2006 - 07. 5 . IN THE RESULT, THE ASSESSEE S APPEAL FOR A.Y. 2006 - 07 IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND APRIL , 2016 . SD/ - SD/ - ( SANDEEP GOSAIN ) ( JASON P. BOAZ ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 22 ND APRIL , 2016 ITA 1153/MUM/2014 SHRI UNNIKRISHNAN N. NAIR 5 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) - 34 , MUMBAI 4 . THE CIT - 24 , MUMBAI 5 . THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.