Sh. Ravi Kumar S/o. Nepal Singh, Farrukhabad V. I.T.O., Ward-2(2), Farrukhabad

ITA 188/AGR/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67431 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 188/AGRA/2013 ASSTT. YEAR : 2009-10 RAVI KUMAR, VS. INCOME-TAX OFFICER, PROP. M/S. NIRMAL MACHINERY STORE, WARD 2(2), FAR RUKHABAD. INDRA NAGAR, MOHAMMADABAD, FARRUKHABAD. (PAN: ALLPK 0078N) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : NONE DATE OF HEARING : 06.08.2013 DATE OF PRONOUNCEMENT OF ORDER : 08.08.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A), GHAZIABAD DATED 13.02.2013 FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS : 1. IN ANY VIEW OF THE MATER AND IN ANY CASE IMPUGN ED ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), GHAZI ABAD IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITIONS MADE BY ASSESSING OFFICER U/S. 69 OF RS.30,74,076/- ON ACCOUNT OF DIF FERENCE IN BALANCES IN ACCOUNT OF THE ASSESSEE AND ONE OF THE CREDITORS BY TREATING THE SAME AS ALLEGED BOGUS LIABILITY. ITA NO. 188/AGRA/2013 2 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION MADE WITHOUT ANY BASIS AND WITHOUT GIVING THE ASSESSEE AN OPPORTUNITY OF B EING HEARD AND APPRECIATING THE FACT OF THE CASE. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS INDIVIDUAL AND FILED RETURN OF INCOME AT RS.1,61,456/- PLUS AGRICULTURAL INCOME. THE ASSESSEE IS DOING THE BUSINESS OF TRADING OF AUTOMOBILES, I.E., PURCH ASE AND SALES OF TRACTORS, MACHINERY SPARE PARTS, ACCESSORIES AND LUBRICANT OI L. THE AO FOUND THAT THE ASSESSEE HAS NOT GIVEN PROPER EVIDENCE AND CONFIRMA TIONS OF CLAIM OF LIABILITIES IN THE BALANCE SHEET. THE AO ISSUED NOTICE TO THE ASSE SSEE FOR SEEKING CLARIFICATION REGARDING SUNDRY CREDITOR M/S. INTERNATIONAL TRACTO RS LTD., JALANDHAR ROAD, HOSHIYARPUR (PUNJAB) IN RESPECT OF THE CREDIT ENTRY SHOWN AT RS.32,28,910/- IN THE BALANCE SHEET OF THE ASSESSMENT YEAR UNDER APPEAL W HEREAS THIS PARTY SENT A CONFIRMATION OF SUNDRY CREDIT AMOUNT IN THEIR BOOKS OF ACCOUNT OF RS.1,54,834/-. OTHER QUERIES WERE ALSO RAISED AND SPECIFIC CLARIFI CATION WAS SOUGHT WITH REGARD TO THE DIFFERENCE IN THE LIABILITIES IN A SUM OF RS.30 ,74,076/- ON ACCOUNT OF LIABILITY SHOWN AGAINST THE ABOVE PARTY AND THE LESSER AMOUNT CONFIRMED BY THE SAID PARTY. NO CLARIFICATION WAS SUBMITTED BEFORE THE AO AND IT WAS SUBMITTED THAT WHATEVER REPLY ALREADY FILED MAY BE CONSIDERED AND HE HAS NO OTHER EXPLANATION. THE AO CONSIDERED THIS ISSUE IN DETAIL AND FOUND THAT THE ABOVE PARTY IN THEIR CONFIRMATION HAS MENTIONED THE LESSER AMOUNT OF RS.1,54,834/- WH EREAS THE ASSESSEE HAS SHOWN ITA NO. 188/AGRA/2013 3 THE HIGHER AMOUNT IN THE BALANCE SHEET AND IN THE A BSENCE OF ANY EXPLANATION REGARDING DIFFERENCE OF THE AMOUNT CLAIMED AS UNEXP LAINED LIABILITY BY THE ASSESSEE, ADDITION OF RS.30,74,076/- WAS MADE AGAIN ST THE ASSESSEE U/S. 69 OF THE IT ACT. THE ASSESSEE CHALLENGED THE ADDITION BEFORE TH E LD. CIT(A). THE ASSESSEE ALSO SOUGHT ADJOURNMENTS, BUT ULTIMATELY ON THE LAST DAT E OF HEARING, NOBODY APPEARED BEFORE THE LD. CIT(A). THEREFORE, THE APPEAL OF THE ASSESSEE WAS DECIDED ON MERITS ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. T HE LD. CIT(A) WITH REGARD TO ADDITION OF RS.30,74,076/- NOTED THAT THE ASSESSEE HAD PRODUCED A DIFFERENT CONFIRMATION LETTER FROM THE PARTY AND WHEN THE AO OBTAINED REPLY FROM M/S. INTERNATIONAL TRACTORS LTD., IT WAS CONFIRMED THAT BALANCE OF RS.1,54,834/- IS DUE FROM THE ASSESSEE. DESPITE GIVING OPPORTUNITY TO TH E ASSESSEE, THE ASSESSEE DID NOT CLARIFY THE ABOVE POSITION AND WHATEVER CONFIRMATIO N WAS PRODUCED BY THE ASSESSEE WAS SUSPICIOUS AND FABRICATED. THE APPEAL OF THE AS SESSEE WAS ACCORDINGLY DISMISSED ON THIS ISSUE. 3. THE APPEAL WAS TAKEN UP FOR HEARING ON 18.07.201 3 AND ON THAT DATE, THE ASSESSEE MADE A REQUEST FOR ADJOURNMENT ON THE REAS ON THAT ONE OF THE COUNSELS MR. SANJEEV KUMAR MAHESHWARI, CA IS OUT OF TOWN DUE TO SOME EMERGENCY WORK AND THESE CIRCUMSTANCES ARE BEYOND HIS CONTROL AND IT C OULD NOT BE POSSIBLE FOR HIM TO ATTEND THE DATE OF HEARING. SINCE IT WAS THE FIRST HEARING, THEREFORE, ON THE REQUEST OF ITA NO. 188/AGRA/2013 4 THE ASSESSEE, THE APPEAL WAS ADJOURNED TO 06.08.201 3. ON THIS DATE, SHRI ANKIT AGARWAL, C.A. APPEARED ON BEHALF OF THE ASSESSEE FO R SEEKING ADJOURNMENT. ON 06.08.2013, AGAIN NOBODY APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING OF APPEAL AND A REQUEST WAS PLACED ON RECORD STATIN G THE SAME REASON WITH SAME VERBATIM THAT ONE OF HIS COUNSEL IS OUT OF TOWN DUE TO SOME EMERGENCY WORK AND THESE CIRCUMSTANCES ARE BEYOND HIS CONTROL AND IT C OULD NOT BE POSSIBLE FOR HIM TO ATTEND THE DATE OF HEARING. THE POWER OF ATTORNEY A VAILABLE ON RECORD IS SIGNED BY THE ASSESSEE IN FAVOUR OF THE CHARTERED ACCOUNTANTS SHRI SANJEEV KUMAR MAHESHWARI, SHRI AMIT BANSAL, SHRI DEEPENDRA MOHAN, AND SHRI MRADUL PATHAK. ON THE DATE OF HEARING ITSELF, SHRI DEEPENDRA MOHAN CHARTERED ACCOUNTANTS APPEARED IN SOME OTHER CASES AND ARGUED. HOWEVER, H E DID NOT APPEAR IN THE PRESENT APPEAL. THE LANGUAGE OF THE ADJOURNMENT APP LICATION IS SIMILAR AS WAS USED IN THE APPLICATION FOR ADJOURNMENT FOR THE DATE OF HEARING ON 18.07.2013. IT WOULD, THEREFORE, SHOW THAT STEREOTYPE REQUEST IS MADE FOR ADJOURNMENTS WITHOUT ANY PLAUSIBLE REASONS. IT IS ALSO NOT EXPLAINED WHY THE OTHER CHARTERED ACCOUNTANTS ARE NOT APPEARING IN THE MATTER AND AS TO WHICH OF HIS COUNSEL HAD GONE OUT OF STATION FOR EMERGENCY WORK. THE LANGUAGE OF BOTH THE APPLIC ATIONS IS SIMILAR, WOULD SHOW THAT THE ASSESSEE HAS BEEN DELIBERATELY AVOIDING DI SPOSAL OF APPEAL. ACCORDING TO THE ORDER 17 RULE 2 OF CPC PROVIDES THAT THE FACT T HAT PLEADER OF THE PARTY IS ENGAGED IN ANOTHER COURT SHALL NOT BE GROUND FOR AD JOURNMENT. HERE, DESPITE THE ITA NO. 188/AGRA/2013 5 ASSESSEE ENGAGED FOUR COUNSELS AND ONE OF THEM WAS ALSO PRESENT IN THE COURT AT THE TIME OF HEARING OF THIS APPEAL, BUT DID NOT APPEAR AND WHAT WAS THE REASON WHY ONE OF THE PERSONS HAS GONE OUT OF THE TOWN IS NOT EXPL AINED, WHY THE OTHER COUNSELS HAVE NOT APPEARED IN THE MATTER IS ALSO NOT EXPLAIN ED. IT IS ALSO NOT EXPLAINED WHY ONE OF THE COUNSEL ALWAYS REMAINED OUT OF TOWN DUE TO SOME EMERGENCY WORK. CONSIDERING THE FACTS OF THE CASE AS NOTED ABOVE IN THE LIGHT OF THE REQUEST FOR ADJOURNMENT, WE DO NOT FIND ANY JUSTIFICATION TO AD JOURN THE CASE. ACCORDINGLY, THE REQUEST FOR ADJOURNMENT HAS BEEN REJECTED. SIMILARL Y NONE APPEARED ON BEHALF OF THE REVENUE. THEREFORE, THE APPEAL IS DECIDED ON TH E BASIS OF MATERIAL AVAILABLE ON RECORD. 4. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF T HE VIEW, NO INTERFERENCE IS CALLED FOR IN THE MATTER. THE LD. CIT(A) HAS GIVEN LARGE NUMBER OF OPPORTUNITIES TO THE ASSESSEE FOR APPEARING AND ARGUING THE APPEAL. HOWEVER, NONE HAVE BEEN AVAILED TO AND EVEN ON THE INITIAL HEARING, THE APP EAL WAS ADJOURNED BY THE LD. CIT(A) ON THE REQUEST OF THE ASSESSEE. THEREAFTER, THE APPEAL WAS TAKEN UP BY THE LD. CIT(A) ON SEVERAL DATES BUT THE ASSESSEE DID NO T APPEAR AND DID NOT MAKE ANY APPLICATION FOR ADJOURNMENT. THEREFORE, THE LD. CIT (A) WAS JUSTIFIED IN DECIDING THE APPEAL OF THE ASSESSEE EXPARTE. THE LD. CIT(A) THUS , GAVE PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS THE AO HAS OBTAINED CONFIRMATION FROM THE ITA NO. 188/AGRA/2013 6 CREDITOR, M/S. INTERNATIONAL TRACTORS LTD. WHO HAVE REPORTED THAT A SUM OF RS.1,54,838/- IS PAYABLE AS AGAINST CLAIM OF ASSESS EE OF RS.32,28,910/-, THE ASSESSEE WAS CONFRONTED WITH THE SAME CONFIRMATION BUT THE ASSESSEE DID NOT FILE ANY EXPLANATION BEFORE THE AO OR THE LD. CIT(A) TO EXPLAIN THE ABOVE DISCREPANCY. THE LD. CIT(A) WAS, THEREFORE, JUSTIFIED IN HOLDING THAT THE CONFIRMATION FILED BY THE ASSESSEE IS SUSPICIOUS AND IS FABRICATED. IT IS , THEREFORE, A CASE THAT THE ASSESSEE HAS NO EXPLANATION AT ALL TO EXPLAIN THE DISCREPANC Y IN THE ACCOUNT OF THE ABOVE SUNDRY CREDITOR. THE APPEAL OF THE ASSESSEE HAS, TH EREFORE, NO MERIT AND THE SAME IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY