MOHD. HUSSAIN GHULAM MOHD, MACHKAL, MUMBAI V. ITO 16(2)(4), MUMBAI

ITA 2373/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1238 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-04-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 09-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 142(1); 80HHC; 147; 27; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2373/MUM/2014 FOR ASSESSMENT YEAR: 2002-03 ITA NO.2374/MUM/2014 FOR ASSESSMENT YEAR: 2003-04 MD. HUSSAIN GHULAM MOHD. MACHKAL, 54, B.C. REHMAT VILLA, SHOP NO.4, KHARSETJEE RAMA STREET, GRANT ROAD, MUMBAI-400007. PAN: AFGPM7745H VS. ITO - 16(2)(4), MATRU MANDIR, OPP. BHATIA HOSPITAL, TARDEO, MUMBAI-400034. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SUMAN KUMAR (DR) DATE OF HEARING : 11.04.2017 DATE OF ORDER : 21.04.2017 O R D E R PER PAWAN SINGH, JM: 1. THESE TWO APPEAL BY ASSESSEE UNDER SECTION 253 OF THE IT ACT (THE ACT) ARE DIRECTED AGAINST THE ORDER OF LD. COMMISSI ONER OF INCOME TAX (APPEALS)-28, (FOR SHORT CIT(A), MUMBAI, DATED 19.02.2014. THE LD. CIT(A) PASSED THE CONSOLIDATED FOR ASSESSMENT Y EAR (AY) 2002-03 & 2003-04 IN CONFIRMING THE PENALTY ORDER U/S 271(1 )(C) OF THE ACT. AS THE FACTS OF BOTH THE AYS ARE IDENTICAL, IDENTIC AL GROUND OF APPEAL ARE RAISED THUS, BOTH THE APPEALS WERE CLUBBED TOGE THER, HEARD AND ARE BEING DECIDED BY A CONSOLIDATED ORDER TO AVOID THE CONFLICTING DECISION 2 ITA NOS. 2373 & 2374/M/2014 MD. HUSSAIN GHULAM MOHD . MACHKAL 2. FOR APPRECIATION OF FACT, WE ARE REFERRING THE FACT S FOR AY 2002-03. THE ASSESSEE IS THE PROPRIETOR OF M/S HANNAN ENTERP RISES, ENGAGED IN THE BUSINESS OF EXPORT OF READYMADE GARMENTS, FILED RETURN OF INCOME FOR RELEVANT AY ON 31.10.2002 DECLARING TOTAL INCOM E OF RS. NIL. IN THE RETURN OF INCOME THE ASSESSEE DECLARED GROSS LO SS AND CLAIMED DEDUCTION U/S 80HHC OF RS. 12,44,687/-. THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) ON 28/03/2003. THE A SSESSMENT WAS RE-OPENED IN VIEW OF THE DECISION OF HONBLE SUPREM E COURT IN IPCA LABORATORIES VS DCIT (266 ITR 521).THE NOTICE UNDE R SECTION 148 DATED 21.10.2004 WAS ISSUED TO THE ASSESSEE. IN T HE RETURN OF INCOME THE ASSESSEE CLAIMED DEDUCTION U/S 80HHC ON THE DUT Y DRAWBACK AND DEPB INCOME. THE NET PROFIT AS PER PROFIT & LOSS A/ C WAS SHOWN AT RS. 12,44,687/-. THE COMPUTATION OF DEDUCTION U/S 8 0HHC AS PER FORM NO. 10CCAC WAS WORKED OUT AT RS. 16,95,141/- W HICH WAS RESTRICTED TO THE AMOUNT OF NET PROFIT OF RS. 12,44 ,687/-. THUS, TOTAL TAXABLE INCOME WAS WRITTEN AT RS. NIL. IN THE RE-AS SESSMENT PROCEEDING, THE ASSESSEE MADE NO COMPLIANCE TO THE NOTICES ISSUED U/S 148, 143(2), 142(1) NOR FILES ANY REVISED WORKING O F DEDUCTION U/S 80HHC. ON THE BASIS OF DETAILS AVAILABLE ON RECORD, THE AO PASSED THE ASSESSMENT ORDER U/S 143(3) READ WITH SECTION 1 47 ON 23.03.2006 ASSESSING THE TOTAL INCOME OF RS. 20,90,137/-. ON A PPEAL THE INCOME ESTIMATED WAS RESTRICTED TO RS. 7,00,000/- BY LD. C IT(A) HOLDING THAT ESTIMATION OF AO WAS VERY HIGH. ON FURTHER APPEAL T O THE TRIBUNAL, THE ORDER OF LD. CIT(A) WAS SUSTAINED VIDE ORDER D ATED 23.07.2010 IN ITA NOS. 6362 & 6363/MUM/09. AFTER RECEIPT OF ORDER FOR DISMISSAL OF APPEAL, THE AO INITIATED THE PENALTY PROCEEDING BY ISSUING NOTICE DATED 23.03.2006. THE ASSESSING OFFICER HELD THAT T HE ASSESSEE HAS FURNISHED INACCURATE PARTICULAR OF INCOME TO THE EX TENT INCOME CONFIRMED BY LD CIT(A). THE NOTICE UNDER SECTION 27 4 RWS 271(1)(C) 3 ITA NOS. 2373 & 2374/M/2014 MD. HUSSAIN GHULAM MOHD . MACHKAL WAS DULY SERVED. THE NOTICE WAS CONTESTED BY ASSESS EE BY FILING REPLY DATED 28.03.2011. IN THE REPLY, THE ASSESSEE CONTEN DED THAT HE HAS NOT BEEN ABLE TO PAY THE TAX AS HE HAS NO BUSINESS AND PRAYED FOR MAKING INSTALMENT OF THE DEMAND DUE AGAINST THE ASSESSEE. AFTER CONSIDERING THE REPLY OF ASSESSEE, THE AO LEVIED THE PENALTY OF RS. 1,84,000/- BEING 100% OF THE TAX SOUGHT TO BE EVADED U/S 271(1 )(C) OF THE ACT. ON APPEAL BEFORE THE LD. CIT(A), THE ORDER OF PENAL TY WAS UPHELD. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE PRESENT APPEAL IS FILED BEFORE US. 3. THE CASE WAS FIXED FOR HEARING ON 11.04.2017. NONE APPEARED ON BEHALF OF ASSESSEE DESPITE REPEATED CALLS. AS NONE APPEARED ON BEHALF OF ASSESSEE DESPITE WAITING FOR SUFFICIENT TIME, WE LEFT NO OPTION EXCEPT TO HEAR THE SUBMISSION OF LD. DR FOR THE REV ENUE AND PROCEED WITH ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW. L D. DR FOR THE REVENUE FURTHER ARGUED THAT THE ASSESSEE FILED WRON G CLAIM U/S 80HHC. THUS, THE CONCEALED INCOME TO THE EXTENT OF RS. 7,00,000/- AS ESTIMATED BY AO FOR RS. 20,90,137/-. ON APPEAL BEFO RE THE LD. CIT(A), THE INCOME WAS ESTIMATED AT RS. 7,00,000/-. THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL, WHEREIN THE ORDER OF LD CIT(A) SUSTAINED. IT WAS FURTHER ARGUED THAT THE ASSESSEE HAS NOT COME FORWARD TO SUBSTANTIATE HIS CONTENTION BEFORE THE T RIBUNAL. LD. DR FOR THE REVENUE PRAYED FOR DISMISSAL OF BOTH THE APPEAL S. 4. WE HAVE CONSIDERED THE CONTENTION OF LD. DR FOR THE REVENUE AND FURTHER GONE THROUGH THE ORDERS OF AUTHORITIES BELO W. WE HAVE SEEN THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVA NT ASSESSMENT YEAR ON 31/10/2002. AT THE TIME OF FILING OF RETURN OF I NCOME THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN IPCA LABORATORY DAT ED 02/07/2001 WAS AVAILABLE. THE CLAIM OF ASSESSEE MADE IN THE RE TURN OF INCOME 4 ITA NOS. 2373 & 2374/M/2014 MD. HUSSAIN GHULAM MOHD . MACHKAL WAS NOT ALLOWABLE UNDER SECTION 80HHC. THUS THE CLA IM OF THE ASSESSEE WAS NOT AS PER THE PREVAILING LAW AT THE T IME OF FILING THE RETURN OF INCOME. EVEN OTHERWISE THE ASSESSEE FAILE D TO SUBSTANTIATE HIS CLAIM. THE ASSESSEE HAS NOT FILED DETAILS OF BO OKS OF ACCOUNT AND THE GROSS LOSS DECLARED BY THE ASSESSEE. IN ABSENCE OF PROPER VERIFICATION OF BOOKS OF ACCOUNT THE INCOME OF THE ASSESSEE WAS ESTIMATED BY ASSESSING OFFICER. ON APPEAL THE INCOM E WAS RESTRICTED TO RS.7,00,00/- BY LD CIT(A). THE ASSESSEE IN REPLY TO THE NOTICE UNDER SECTION 274 RWS 271(1)(C) AGAIN FAILED TO SUBSTANTI ATE HIS DEFENCE. EVEN, BEFORE THE TRIBUNAL IN THE PRESENT PROCEEDING S THE ASSESSEE HAS NEITHER FILED ANY DOCUMENTARY EVIDENCES NOR CAME FO RWARD TO SUBSTANTIATE THE GROUNDS OF APPEAL. THUS, WE DO NOT FIND ANY REASON OR GROUND TO DEVIATE FROM THE FINDINGS OF LD CIT(A). H ENCE, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 5. THE ASSESSEE HAS RAISED IDENTICAL GROUND OF APPEAL IN APPEAL FOR AY 2003-04. THE FACTS RELATED WITH THE ASSESSMENT YEAR UNDER CONSIDERATION ARE ALSO IDENTICAL EXCEPT THE FIGURE OF DISALLOWANCE UNDER SECTION 80HHC. AS WE HAVE ALREADY DISMISSED T HE APPEAL FOR AY 2002-03 ON IDENTICAL FACTS, HENCE THIS APPEAL IS ALSO DISMISSED WITH SIMILAR OBSERVATION. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST APRIL, 2017. SD/- SD/- /- (G.S. PANNU) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 21/04/2017 S.K.PS 5 ITA NOS. 2373 & 2374/M/2014 MD. HUSSAIN GHULAM MOHD . MACHKAL / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/