Smt. Preeti Jain, Dehradun V. ACIT, Dehradun

ITA 2567/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9978 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 31-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 28-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMRENDRA KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.G . BANSAL, ACCOUNTANT MEMBER I.T.A. NO.2567/DEL/2010 ASSESSMENT YEAR : 2006-07 MRS. PREETI JAIN, VS. ADDL. CIT, RUCHIPURA, MAJRA, RANGE-I, DEHRADUN DEHRADUN PAN NO.AANPJ 4586 B (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI AMRENDRA KUMAR, SR. DR ORDER PER K.G. BANSAL, AM: IN THIS APPEAL, THE ASSESSEE HAS TAKEN UP FOLLOWING FIVE GROUNDS:- 1. THE ORDER OF THE LEARNED ASSESSING OFFICER IS NOT BASED ON FACTS THAT LEARNED ASSESSING OFFICER IN ITS ORDER DATED 16.07.2 008 HERSELF AGREE THAT COMMISSION TO THE TUNE OF 1.2% IS COMP ARABLE COMMISSION AND HENCE HIGH COMMISSION WHEN WORKS OUT O F 5 TO 6% IS PAID. ON THIS GROUND THE ENTIRE COMMISSION PAID CANNOT BE DISALLOWED. 2. THAT IF YOU COMPARE THE PURCHASE AMOUNT TO SALE AMOUNT THE PROFIT OF `7,32,105/- AFTER PAYMENT OF COMMISSION IS AROUND 40% OF THE SALES IT IS A QUITE HIGH PROFIT WHICH THE ASSESSES HAVE S HOWN AND PAID THE TAX. THE LEARNED ASSESSING OFFICER HAVE ALSO IGN ORED THIS POINT. THE SHOWING OF THE HIGH PROFIT STANDS FOR TAX FRIENDLY BEHAVIOUR OF THE ASSESSEE. 3. THAT THE LEARNED ASSESSING OFFICER ALSO CONSIDERED DISALLO WING THE COMMISSION DUE TO NON-APPEARANCE OF SMT. SAIL BALA JAIN TO 2567-2010-PREETI JAIN 2 WHOM THE COMMISSION HAS BEEN PAID IGNORING THE FACT SHE WAS NOT WELL AT THAT TIME. 4. UNDER THE CIRCUMSTANCES IT IS SUBMITTED THAT COMMISSION HAVE NOT BEEN PAID TO ENHANCE THE EXPENSES AND SMT. SAIL BALA JAIN HA VE ALSO PAID THE TAX ON THE COMMISSION AMOUNT RECEIVED BY H ER, THEREFORE, IT IS PRAYED THAT PENALTY IMPOSED BY THE LEARNED ASSESSING OFFICER MAY KINDLY BE CONSIDERED TO BE DELETED. 5. IT IS PRAYED THAT PENALTY OF `33,660/- MAY PLEASE BE DEL ETED. 2. AT THE TIME OF FILING THE APPEAL, AN ACKNOWLEDGEMENT-CU M-NOTICE WAS SERVED ON THE ASSESSEE, FIXING THE APPEAL ON 29.07.2010. A S NOBODY ATTENDED ON BEHALF OF THE ASSESSEE ON THIS DATE, THE HEARING WAS ADJOUR NED TO 07.12.2010. THE BENCH DID NOT FUNCTION ON 07.12.2010. THEREFORE, A NO TICE FOR HEARING WAS ISSUED ON 09.02.2011, FIXING THE APPEAL ON 31.03.2011. NOBO DY ATTENDED THIS DATE ALSO. THEREFORE, IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN P ROSECUTING THE APPEAL. ACCORDINGLY THE APPEAL IS LIABLE TO BE DISMISSED FOR NON -PROSECUTION IN VIEW OF THE DECISION OF HON'BLE MADHYA PRADESH HIGH COURT IN THE C ASE OF TUKOJIRAO HOLKAR V. CWT 223 ITR 480 (MP) WHILE DISMISSING THE REFERENCE MADE A T THE INSTANCE OF THE ASSESSEE IN DEFAULT MADE THE FOLLOWING OBSERVATIONS: IF THE PARTY AT WHOSE INSTANCE, THE REFERENCE IS MADE, FAI LS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF TH E PAPER BOOK SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT BOUND TO A NSWER THE REFERENCE. 2.1 ITAT DELHI BENCH D IN THE CASE OF CIT V. MULTIPLA N INDIA (P) LTD. OBSERVED THAT THE PROVISIONS OF RULE 19 STATE THAT MERE ISSUE OF NOTICE COULD NOT BY ITSELF MEAN THAT THE APPEAL HAD BEEN ADMITTED. THIS RULE ONLY CLARI FIES THE POSITION. THERE MIGHT BE VARIOUS REASONS WITH THE APPELLANT TO REMAIN ABSENT AT THE TIME OF HEARING. ONE 2567-2010-PREETI JAIN 3 OF THE REASONS MIGHT ALSO BE A DESIRE OR ABSENCE OF NEED TO PROSECUTE THE APPEAL OR LIABILITY TO ASSIST THE TRIBUNAL IN A PROPER MANNER OR TO TAKE BENEFIT OF VAGARIES OF LAW. IT IS ORDERED ACCORDINGLY. 3. IN RESULT, THE APPEAL IS DISMISSED. THIS ORDER WAS PRONOUNCED IN OPEN COURT ON 31.03.2011 ON COMPLETION OF THE HEARING. SD/- SD/- ( I.P. BANSAL ) ( K.G. BANSAL ) JUDICIAL MEMBER ACCOUNTA NT MEMBER NS DT. 31.03.2011. COPY FORWARDED TO:- 1. MRS. PREETI JAIN, RUCHIPURA, MAJRA, DEHRADUN. 2. ADDL. CIT, RANGE-1, DEHRADUN. 3. THE RESPONDENT 4. THE CIT 5. THE CIT (A)-, NEW DELHI. 6. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).