SAVITA ENTERPRISES, MUMBAI V. ACIT CIR 1, MUMBAI

ITA 1535/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2170 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 27-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 22-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K MOHANDA S
• Keywords: Initiation of penalty proceedings
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE SHRI JASON P. BOAZ, A M AND SHRI AMIT SHUKLA , J M ./ ITA NO.1535/MUM/2011 ( / ASSESSMENT YEAR: 2007 - 08 ) M/S. SAVITA ENTERPRISES /APPELLANT C/O. N.A. KULKARNI, ADVOCATE 1ST FLOOR, WADAL BUILDING MANPADA ROAD, DOMBBIVILI (E), / VS. ACIT, CIRCLE - 1 / RESPONDENT 3 RANI MENSION, 3RD FLOOR MURBAD ROAD, KALYAN DIST, THANE ./ PAN - ABEFS3961P / APPELLANT BY: NONE / RESPONDENT BY : SHRI K. MOHANDAS / DATE OF HEARING : 30.11. 2015 / DATE OF PRONOUNCEMENT : 09 . 12 .2015 / O R D E R PER JASON P. BOAZ , A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - I, THANE DATED 15.12.2010 FOR A.Y. 2007 - 08. THE LEARNED D.R. WAS PRESENT FOR REVENUE, BUT NONE APPEARED ON BEHALF OF ASSESSEE. 2 . THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER: - 2.1 THE ASSESSEE, A FIRM ENGAGED IN THE BUSINESS OF QUARRYING OF STONES FOR WHICH IT RECEIVES HIRING CHARGES, FIELD ITS RETURN OF INCOME FOR A.Y. 2007 - 08 ON 02.11.2007 DECLARING TOTAL INCOME OF ` 6,32,853/ - . THE 2 ITA NO.1535/MUM/2011 M/S. SAVITA ENTERPRISES CASE WAS SELECTED FOR SCRUTINY AND ASSESSING OFFI CER COMPLETED ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) VIDE ORDER DATED 29.12.2009 WHEREIN THE INCOME OF ASSESSEE WAS DETERMINED AT ` 98,49,050/ - IN VIEW OF THE FOLLOWING DISALLOWANCES: - I. DISALLOWANCE UNDER SECTION 40(A)(IA) ` 67,37,000/ - II. DISALLOWANCE UNDER SECTION 40A(3) ` 24,79,200/ - 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT , ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A) - 1, THANE. THE LEARNED CIT(A) DISPOSED OF THE APPEAL BY ORDER DATED 15.12.2010 ALLOWING PARTIAL R ELIEF TO ASSESSEE . 3 . THE INSTANT APPEAL, AT THE INSTANCE OF THE ASSESSEE, IS DIRECTED AGAINST THE ORDER OF CIT(A) - 1, THANE WHEREIN ASSESSEE HAD RAISED THE FOLLOWING GROUNDS: - 1) THE ADDITION DONE ON A/C OF 40(A)(IA) OF IT ACT, 1961, BY THE A.O. CONFIRMED BY HIM THE EXTENT OF RS.67,37,000/ - 2. THE ADDITION IN LANE OF SECTION 40A(3) DONE BY THE A.O. CONFIRMED OUT OF THAT: I) REPAIRS & MAINTENANCE 402459/ - II) SUNDRY EXP. 429055/ - III) TRANSPORT CHARGES 357659/ - 3. INITIATION OF PENALTY U/S 269 SS DISM ISSED SUCH GROUNDS. 4 . THE HEARINGS IN THIS CASE WERE FIXED ON MORE THAN 15 OCCASIONS OF WHICH SEVEN WERE ADJOURNED AS THE BENCH DID NOT FUNCTION. THE ASSESSEES COUNSEL APPEARED TWICE AND SOUGHT ADJOURNMENTS OF THE CASE HEARINGS AND ON OTHER OCCASION S NONE APPEARED ON BEHALF OF ASSESSEE INSPITE OF THE NOTICES FOR HEARING HAVING BEEN DESPATCHED TO ASSESSEE BY RPAD. THUS, WE HAVE HEARD THIS APPEAL ON THE BASIS OF THE MATERIAL ON RECORD AND AFTER TAKING THE ASSISTANCE OF LEARNED D.R. FOR REVENUE WHO WAS PRESEN T. 3 ITA NO.1535/MUM/2011 M/S. SAVITA ENTERPRISES 5 . AFTER CAREFULLY CONSIDERING THE SUBMISSIONS PUT FORTH BY THE LEARNED D.R. FOR REVENUE AND THE FINDINGS RENDERED BY THE LEARNED CIT(A) IN THE IMPUGNED ORDER ON THE ISSUES RAISED IN THE GROUNDS OF APPEAL (SUPRA), WE FIND THAT ASSESSEE HAS BEEN UNABLE TO REBUT THE FINDINGS OF LEARNED CIT(A) O N BOTH THE ISSUES; (I) OF THE DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT AND (II) IN RESPECT OF THE EXTENT TO WHICH THE DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT HAS BEEN SUSTAINED. IN THE ABSENCE OF ANY SUCH EXPLANATION OR MATERIAL EVIDENCE BEING BROUGHT ON RECORD BY ASSESSEE TO CO NTRADICT THE FINDINGS OF THE LEARNED CIT(A), WE DO NOT FIND ANY REASON TO DEVIATE FROM THE FININGS RENDERED AND RECORDED BY LEARNED CIT(A) IN THE IMPUGNED ORDER AND ACCORDINGLY UPHOL D THE SAME. CONSEQUENTLY GROUNDS AT SERIAL NUMBERS 1 & 2 OF ASSESSEES APPEAL ARE DISMISSED. 6 . IN GROUND NO.3 , ASSESSEE HAS CHALLENGED THE INITIATION OF PENALTY PROCEEDINGS FOR VIOLATION OF SECTION 269SS OF THE ACT. MERE INITIATION OF PENALTY PROCEEDINGS DO E S NOT GIVE RISE TO ANY CAUSE OF GRIEVANCE TO ASSESSEE AND SINCE THIS GROUND IS PREMATURE AND NOT MAINTAINABLE, IT IS ACCORDINGLY DISMISSED. 7 . IN THE RESULT, ASSESSEES APPEAL FOR A.Y. 2007 - 08 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DECEMBER , 2015. 09 . 12 . 2015 SD/ - SD/ - ( AMIT SHUKLA ) ( JASON P. BOAZ ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI , DATED 9 TH DECEMBER , 2015 4 ITA NO.1535/MUM/2011 M/S. SAVITA ENTERPRISES / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) - 1, THANE 4. / THE CIT - CIRCLE - 1, KALYAN 5. , , / DR, H BENCH ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER //TRUE COPY// /ASSTT. REGISTRAR) , /ITAT, MUMBAI N.P.