MADAN S. KOLAMBEKAR, NAVI MUMBAI V. DCIT CEN CIR 39, MUMBAI

ITA 1751/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4038 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 29-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 13-03-2012
• Court: TRIBUNAL
• Department Lawyers: N P SINGH; SRIDHAR E
• Section: 28; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI AMIT SHUKLA (JM) I.T.A. NO. 1751 /MUM/ 2012 (ASSESSMENT YEAR 2003 - 04 ) I.T.A. NO. 1752/MUM/2012 (ASSESSMENT YEAR 2004 - 05) I.T.A. NO. 2949/MUM/2013 (ASSESSMENT Y EAR 2004 - 05) SHRI MADAN S. KOLAMBEKAR PH - 4, BALAJI KRUPA COMPLEX PLOT NO. 3 - A, SECTOR 28 NERUL NAVI MUMBAI - 400 020. VS. DCIT, CC - 39 112, AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400020. ( APPELLANT ) ( RESPONDENT ) PAN NO. AGXPK2256R ASSESSEE BY NONE DEP ARTMENT BY SHRI N.P. SINGH & SHRI SRIDHAR E. DATE OF HEARING 11 .4 . 201 6 DATE OF PRONOUNCEMENT 11 .4 . 201 6 O R D E R PER B ENCH : - ALL THESE APPEALS PREFERRED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER S PASSED BY LEARNED CIT(A) - 41, MUMBAI AND THEY PERTAIN TO A.Y. 2003 - 04 & 2004 - 05. THE APPEAL NUMBERED AS ITA 2949/MUM/2013 PERTAINS TO THE PENALTY LEVIED U/S 271B OF THE ACT FOR AY 2004 - 05 AND THE OTHER TWO APPEALS RELATE TO QUANTUM ASSESSMENT PROCEEDINGS. 2. NONE APPEARED ON BEHALF OF THE ASSESS EE EVEN THOUGH CASE WAS ADJOURNED ON THE LAST OCCASION AT THE SPECIFIC REQUEST OF THE ASSESSEE. HENCE WE PROCEED TO DISPOSE OF THE APPEAL, EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE. SHRI MADAN S. KOLAMBEKAR 2 3. COMMON GROUND URGED IN ITA NO. 1751 & 1752/MUM/2012 RELATES TO ADDITI ON MADE TOWARDS HOUSEHOLD EXPENSES. 4. THE ASSESSING OFFICER MADE ADDITION OF RS. 3 LAKHS AND RS. 3,60,000/ - RESPECTIVELY IN A.Y. 2003 - 04 & 2004 - 05 ON NOTICING THAT THE AMOUNT WITHDRAWN BY THE ASSESSEE FOR DOMESTIC EXPENSES WAS VERY MUCH LOWER, I.E., RS .60,000/ - AND RS.1,62,427/ - RESPECTIVELY FOR THE TWO YEARS REFERRED ABOVE . THE LEARNED CIT(A) ALSO FOUND THE WITHDRAWALS TO BE LOW. FURTHER EVEN THOUGH THE ASSESSEE CLAIMED THAT HIS SPOUSE H AS ALSO WITHDRAWN MONEY , YET NO EVIDENCE WAS SUBMITTED TO SUPPORT THE CLAIM. UNDER THESE SET OF FACTS, LEARNED CIT(A) CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER IN THE TWO YEARS UNDER CONSIDERATION. 5. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. WE NOTICED THAT THE ASSESSEE HAS , PRIMA FACIE, ACCEPTED THE HOUSEHOLD EXPENSES ESTIMATED BY THE AO AND HE HAS ONLY PLEADED THAT HIS WIFE HAS ALSO WITHDRAWN FUNDS. HOWEVER, THE LEARNED CIT(A) HAS GIVEN A FINDING THAT THE SAID CONTENTIONS WERE NOT SUPPORTED BY ANY EVIDENCE. BEFORE US THE ASSESSEE DID NOT FILE ANY MATERIAL TO CONTRADICT THE FINDING GIVEN BY LD CIT(A). A CCORDINGLY WE UPHOLD HIS ORDER PASSED ON THIS ISSUE IN BOTH THE YEARS UNDER CONSIDERATION. 6. NEXT GROUND URGED IN APPEAL FILED BY THE ASSESSEE FOR A.Y. 2004 - 05 RELATES T O DISALLOWANCE CLAIM OF RS. 19,82,800/ - CLAIMED AS PART OF COST OF LAND , WHILE COMPUTING CAPITAL GAINS . 7. THE ASSESSEE CLAIMED A SUM OF RS. 19,82,800/ - AS PART OF COST OF LAND OVER AND ABOVE THE AMOU NT OF CONSIDERATION DECLARED IN CONVEYANCE DEED. THE AS SESSEE CLAIMED THAT HE PAID A SUM OF RS. 15,00,000/ - TO THE SELLER OVER AND ABOVE AGREED CONSIDERATION AND FURTHER INCURRED A SUM OF RS. 4,82,800/ - AS BROKERAGE. THE ASSESSEE, HOWEVER, COULD NOT PRODUCE ANY DOCUMENTARY SHRI MADAN S. KOLAMBEKAR 3 EVIDENCE IN THAT REGARD. UNDER THESE CIRCUMSTANCES, LEARNED CIT(A) ALSO CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 8. WE HEARD LD D.R AND PERUSED THE RECORD. THERE SHOULD NOT BE ANY DISPUTE THAT THE PRIMARY RESPONSIBILITY TO PROVE THE CLAIM IS PLACED UPON THE ASSESSEE. IN THE AB SENCE OF ANY DOCUMENTARY EVIDENCE TO SUPPORT THE CLAIM, WE ARE OF THE VIEW THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE PRIMARY ONUS AND HENCE THE LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF CLAIM MADE BY THE ASSESSEE. 9. WE SHALL NOW TAKE UP THE APPEAL NUMBERED AS 2949/MUM/2013 RELATING TO A.Y. 2004 - 05 PERTAINING TO PENALTY LEVIED U/S 271B OF THE ACT . 10. T HE ASSESSING OFFICER NOTICED THAT THE TURNOVER DECLARED BY THE ASSESSEE IN PROFIT AND LOSS ACCOUNT WAS RS. 71,80,000 / - AND HENCE T HE ASSESSEE SHOULD HAVE GOT HIS ACCOUNTS AUDITED U/S. 44AB OF THE ACT. SINCE THE ASSESSEE FAILED TO DO SO, THE ASSESSING OFFICER LEVIED PENALTY OF RS. 35,900/ - U/S. 44AB OF THE ACT. LEARNED CIT(A) ALSO CONFIRMED THE SAME , SINCE THE ASSESSEE HAS FAILED TO S HOW ANY REASONS FOR HIS FAILURE. 11. BEFORE US ALSO, THE ASSESSEE HAS NOT FURNISHED ANY SATISFACTORY REASONS FOR HIS FAILURE TO GET HIS ACCOUNTS AUDITED AND ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER PASSED BY LD CIT(A) . ACCORD INGLY WE UPHOLD THE ORDER OF LEARNED CIT(A) ON THIS ISSUE. 1 2 . IN THE RESULT, ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER HAS BEEN PRONOU NCED IN THE OPEN COURT ON 11 .4 .2016 . SD/ - SD/ - (AMIT SHUKLA ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MU MBAI ; DATED : 11 / 4 /20 1 6 SHRI MADAN S. KOLAMBEKAR 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS