Sri. SANJAY KUMAR AGARWAL, MUMBAI V. ITO Wd, - 13(1)(4), MUMBAI

ITA 1482/MUM/2006

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59967 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-03-2012
• Assessment Year: 1993-1994
• Appeal Filed On: 02-03-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHIRI G. E. VEERABHADRAPPA, HON'BLE PRESIDEN T AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. : 1482/MUM/2006 ASSESSMENT YEAR : 1993-94 SHRI SANJAY KUMAR AGGARWAL 11/83, OM DARIYA MAHAL, 80, NEPEAN SEA ROAD, MUMBAI-400 006 VS. ITO WARD 13(1)(4), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI P.C. MAURYA DATE OF HEARING : 0 7 .03.2012 DATE OF PRONOUNCEMENT : 30 . 03.2012 ORDER PER AMIT SHUKLA (J.M.) : THIS APPEAL HAS BEEN FILED BY THE APPELLANT AGAINS T ORDER DATED 17.12.2005 PASSED BY THE CIT (APPEALS)-XIII, MUMBAI FOR THE ASSESSMENT YEAR 1993-94 IN RELATION TO THE PENALTY PROCEEDINGS U/S.271(1)(C) OF THE I.T. ACT. THE APPELLANT HAS RAISED FOLLOWING GROUN DS OF APPEAL TO CHALLENGE THE ORDER OF THE CIT(APPEALS) : 1. THAT WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS JUSTIFIED BY HOLDING THAT T HE ORDER U/S.271(1)(C) HAVE BEEN PASSED ON 25.01.05 PRESUMAB LY WITHIN SIX MONTHS FROM THE RECEIVING OF ORDER BY CI T DESPITE THE FACT THAT NO DATE OF RECEIVING OF THE ORDER BY CIT IS MENTIONED IN THE ORDER OF AO. ITA NO : 1482/MUM/2006 SHRI SANJAY KUMAR AGGARWAL 2 2. THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED BY HOL DIG THAT THERE IS NO VIOLATION OF BOARDS INSTRUCTIONS REGAR DING NOT TO PASS ANY PENALTY ORDER WHEN THE MATTER IS STILL ALI VE BY WAY OF MISCELLANEOUS APPLICATION. 3. THAT WHETHER ON THE FACTS AND CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) WAS JUSTIFIED BY HOLDING THAT P ROVISION OF SECTION 274(1) HAVE BEEN COMPLIED WITH. 4. THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED BY HOL DING THAT RECORDING OF SATISFACTION IS NOT NECESSARY IN THE PRESENT CASE. 5. THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED BY UPH OLDING THE ORDER OF A.O. IN WHICH HE HAS NOT ESTABLISHED A BOUT ANY CONCEALMENT OF THE INCOME OR FILING OF INACCURATE P ARTICULARS OF INCOME. 6. THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED BY UPH OLDING THE DISMISSAL OF APPEAL AS SOLELY GROUND FOR IMPOSI NG PENALTY WITHOUT ANY ADVERSE EVIDENCE. 2. ON THE DATE OF HEARING, AN ADJOURNMENT APPLICATI ON WAS FILED VIDE LETTER DATED 07.03.2012, WHICH HAS BEEN REJECTED BY US. THE BACKGROUND BEHIND OUR REJECTION IS THAT EARLIER AFTER 11 ADJOU RNMENTS SOUGHT BY THE ASSESSEES COUNSEL, THE CASE WAS DISMISSED FOR WANT OF PROSECUTION VIDE ORDER DATED 23.03.2011. THE SAID ORDER WAS THEREAF TER RECALLED AFTER IMPOSING COST OF `. 1,000/- VIDE ORDER DATED 25.11.2011. AFTER RECALL ING OF THE ORDER, THE HEARING WAS FIXED FOR 24.01.2012. ON 24.01.2012, AN ADJOURNMENT WAS SOUGHT BY THE ASSESSEES COUNSEL VI DE LETTER DATED 23.01.2012 AND THE CASE WAS FINALLY ADJOURNED FOR H EARING ON 07.03.2012, STATING THAT NO FURTHER ADJOURNMENT SHA LL BE GRANTED. AGAIN ON THE DATE OF HEARING I.E. 07.03.2012, ADJOURNMENT HAS BEEN SOUGHT. THIS APPLICATION HAS BEEN REJECTED BY US ON THE GRO UND THAT FIRSTLY, IT IS AN OLD APPEAL AND SECONDLY, ON THE LAST OCCASION IT WAS SPECIFICALLY TOLD TO THE AUTHORIZED REPRESENTATIVE THAT NO FURTHER ADJOU RNMENT SHALL BE ITA NO : 1482/MUM/2006 SHRI SANJAY KUMAR AGGARWAL 3 GRANTED. HENCE, WE ARE PROCEEDING TO DECIDE THE AP PEAL ON MERITS AFTER HEARING THE LEARNED SR. DR. 3. THE BRIEF FACTS AS ARE CULLED OUT FROM THE ORDER OF THE CIT(APPEALS) AND ASSESSING OFFICER ARE THAT THE ASSESSEE HAS FIL ED ITS RETURN OF INCOME SHOWING BUSINESS LOSS OF `. 2,69,418/-, LONG TERM CAPITAL GAIN OF `. 24,96,665/- WHICH WAS ADJUSTED AGAINST LONG TERM CA PITAL LOSS OF `. 10,09,790/- AND SHORT TERM CAPITAL LOSS OF `. 19,06,300/-. AS AGAINST THIS, THE ASSESSMENT WAS COMPLETED U/S.143(3) / 147 ON 28.05.1998 ON A TOTAL INCOME OF `. 18,63,410/- AFTER MAKING FOLLOWING ADDITIONS :- (I) DISALLOWANCE OF LOSS IN OWN BUSINESS `. 2,69,418 (II) DISALLOWANCE OF SHORT TERM CAPITAL LOSS OF SHARES OF JIJODIA STEEL (I) LTD. `. 1,99,000 (III) DISALLOWANCE OF SHORT TERM CAPITAL LOSS `. 17,07,300 3.1 FROM THE PERUSAL OF THE IMPUGNED ORDER OF THE C IT(APPEALS), IT IS EVIDENT THAT ALL THE ABOVE ADDITIONS HAVE NOT ONLY BEEN CONFIRMED BY THE CIT(APPEALS) BUT ALSO BY THE ITAT VIDE ORDER DATED 31.05.2004. THE RELEVANT OBSERVATIONS OF THE APPELLATE AUTHORITIES HAVE BEEN REPRODUCED BY THE CIT(APPEALS) FROM PARA 4.1 TO PARA 4.6. DUR ING THE COURSE OF THE PENALTY PROCEEDINGS, THE ASSESSEE SEEMS TO HAVE NOT FURNISHED ANY EXPLANATION ON MERITS OF THE ADDITION, ESPECIFICALL Y WHEN THERE IS AN ADVERSE FINDING IN THE QUANTUM PROCEEDINGS BY THE A PPELLATE AUTHORITIES. IT IS A WELL SETTLED PREPOSITION OF LAW THAT, THOUG H THE FINDINGS IN THE QUANTUM PROCEEDINGS DO HAVE PROBATIVE VALUE, BUT AR E NOT CONCLUSIVE UPON THE PLEAS /EXPLANATION WHICH CAN BE TAKEN AT T HE PENALTY STAGE. THE ASSESSEE MAY ADDUCE ANY ADDITIONAL EVIDENCES IN PENALTY PROCEEDINGS TO ESTABLISH MATERIAL AND RELEVANT FACT S THAT IT HAS NOT FURNISHED ANY INACCURATE PARTICULARS OF INCOME OR C ONCEALED ANY INCOME. ITA NO : 1482/MUM/2006 SHRI SANJAY KUMAR AGGARWAL 4 THE ASSESSEE MAY ALSO STILL RELY UPON THE EXISTING MATERIAL TO PROVE THAT THE PRESUMPTION RAISED BY THE EXPLANATION WOULD STA ND REBUTTED AND HE IS NOT GUILTY OF ANY CONCEALMENT OF INCOME. BUT HE RE IN THIS CASE, DESPITE BEING SPECIFIC ADVERSE FINDINGS BY THE TWO APPELLAT E AUTHORITIES ON EACH AND EVERY ADDITIONS / DISALLOWANCES, THEN ALSO THE ASSESSEE HAD NOT GIVEN ANY EXPLANATION OR BROUGHT ANY MATERIAL ON RE CORD SO AS TO TAKE A DIFFERENT VIEW IN THE PENALTY PROCEEDINGS. THE SPE CIFIC FINDING OF THE APPELLATE AUTHORITIES HAVE BEEN ELABORATELY DEALT W ITH BY THE CIT(APPEALS). EVEN IN THE GROUNDS OF APPEAL BEFORE US AND ALSO BEFORE THE CIT(APPEALS) THE APPELLANT HAS MAINLY CHALLENGE D THE PENALTY ORDER ON TECHNICAL GROUNDS WHICH HAS BEEN REJECTED BY THE CIT(APPEALS) ON A VERY COGENT GROUNDS AS PER DISCUSSION APPEARING FRO M PARA 5.2 TO PARA 9.2. IN THE ABSENCE OF ANY REBUTTAL OR ANY EXPLANA TION EITHER BEFORE THE CIT(APPEALS) OR BEFORE US, WE FIND IT VERY DIFFICUL T TO TAKE A DIFFERENT VIEW AS HAVE BEEN TAKEN BY THE CIT(APPEALS) IN THE IMPUG NED ORDER. UNDER THESE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY M ERIT IN THE APPELLANTS CASE AND CONFIRM THE FINDINGS GIVEN BY THE CIT(APPEALS). 4. IN THE RESULT, THE APPEAL FILED BY THE APPELLANT IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF MARCH, 2012. S D/ - S D/ - ( G. E. VEERABHADRAPPA ) ( AMIT SHUKLA ) PRESIDENT JUDICIAL MEMBER MUMBAI, DT: 30.03.2012 ITA NO : 1482/MUM/2006 SHRI SANJAY KUMAR AGGARWAL 5 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, B - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI