Shri Ashwinkumar Hasmukhlal Marwala, Surat V. The Income Tax Officer, Ward-2(3), Surat

ITA 2832/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9556 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 09-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 03-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Keywords: Depreciation; Principle of natural justice; Reasonable cause; Third party statement; Unabsorbed depreciation; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD .., BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER SL. NOS. ITA NO(S) ASSESSMENT YEAR (S) APPEAL(S) BY APPELLANT S VS. RESPONDENT APPELLANT S RESPONDENT 1. 2742/AHD/2013 2007-08 SATISHKUMAR HASMUKHLAL MARWALA 3/148, RANA SHERI INDERPURA, SURAT 395 002 PAN: ADBPM 2832 J THE INCOME TAX OFFICER WARD-2(3) SURAT 2. 2833/AHD/2013 2007-08 -DO-ASSESSEE -DO-REVENUE 3. 2832/AHD/2013 2007-08 ASHWINKUMAR HASMUKHLAL MARWALA (ADDRESS SAME AS ABOVE) PAN: ADBPM 2833K -DO-REVENUE 4. 2834/AHD/2013 2007-08 SHARADKUMAR HASMUKHLAL MARWALA (ADDRESS SAME AS ABOVE) ADBPM 2831 M -DO-REVENUE / APPELLANTS BY : -NONE- / RESPONDENT BY : SHRI RAJESH MEENA, DR ! '# $% / DATE OF HEARING 09/01/2017 &'( $% / DATE OF PRONOUNCEMENT 09/01/2017 / O R D E R THE PRESENT APPEALS HAVE BEEN FILED BY THE DIFFEREN T ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE COMMISS IONER OF INCOME TAX (APPEALS)-II, SURAT [CIT(A) IN SHORT] ALL IDENTICAL LY DATED 30/09/2013 PERTAINING TO ASSESSMENT YEAR (AY) 2007-08. SINCE COMMON ISSUES ARE ITA NOS.2742, 2833, 2832 & 2834/AHD/2013 SATISHKUMAR HASMUKHLAL MARWALA & ORS VS. ITO ASST.YEAR 2007-08 - 2 - INVOLVED AND ALSO INTER-CONNECTED IN ALL THESE APP EALS, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. COMMON GROUNDS RAISED BY THE ASSESSEES ARE AS U NDER:- (EXTRACTED FROM ITA NO.2833/AHD/2013 AY 2007-08 IN THE CASE OF SHRI SATISHKUMAR HASMUKHLAL MARWALA). [1] THE LEARNED C.I.T.[A] OUGHT TO HAVE CONSIDERE D THE REQUEST OF THE A.R. TO ADJOURN THE HEARING OF APPEAL FIXED ON 27/09/201 3[FRIDAY],3DAYS LATER, IE.ON 30/09/2013,AS THERE WAS HEAVY RAINFALL IN THE CITY OF SURAT ON 27/09/2013 AND DUE TO REALISE OF 2 LACS CUSEC WATER FROM UKAI DAM,MANY PART OF CITY WERE SUBMERGED IN WATER TRANSPORTATION BECAME IMPOSSIBLE. ON THE FACTS AND IN THE CIRCUMSTANCES AND KEEPING IN V IEW THE PRINCIPLES OF NATURAL JUSTICE AND HUMANITARIAN ASPECT, ORDER PASS ED BY THE LEARNED C.I.T.[A]MAY KINDLY BE SET ASIDE. [2] THE LEARNED C.LT.[A] HAS ERRED, IN CONFIRMING T HE ADDITION OF RS.663038/- MADE TO THE RETURNED INCOME, AS PER PROVISIONS OF S ECTION 41 [1] [A] OF THE ACT, ON THE WRONG INTERPRETATION OF THE SAID SECTIO N. ON THE FACTS AND IN THE CIRCUMSTANCES AND AS PER PROVISION OF THE ACT THE S AID ADDITION TO BE DELETED. [3] THE LEARNED C.I.T.[A]OUGHT TO HAVE CONSIDERED T HE FACT THERE WERE NO CLAIM MADE BY THE APPELLANT IN ANY OF THE PREVIOUS YEARS PRIOR TO ASSTT. YEAR 2007-08 FOR THE SAID LIABILITY, WHICH HAS BEEN ADDE D TO THE RETURNED INCOME FOR THE ASSTT. YEAR 2007-08. HOW ONE CAN CLAIM CESS ATION OF CURRENT YEARS LIABILITY WHICH HAS BEEN ARISEN IN THE SAME CURRENT YEAR ITSELF. THE OPENING BALANCE IN THE CONTRA CONFIRMATION AS WELL AS MY LE DGER SHOWS NIL BALANCE. THE LIABILITY OF RS.663038/- IS THE OUTCOM E OF CURRENT YEARS TRADING TRANSACTIONS WITH THE SAID PARTIES. UNDER SUCH CIRC UMSTANCES THE SAID ADDITION DESERVES TO BE DELETED. [4] SECTION 41[L]]A] INTRODUCES A FICTION, WHICH IS INDIVISIBLE ONE. IT CANNOT BE ENLARGED BY IMPOSING ANOTHER FICTION NAMELY THAT IF THE AMOUNT WAS OBTAINABLE OR RECEIVABLE DURING THE PREVIOUS YEAR, IT MUST BE DEEMED TO HAVE ITA NOS.2742, 2833, 2832 & 2834/AHD/2013 SATISHKUMAR HASMUKHLAL MARWALA & ORS VS. ITO ASST.YEAR 2007-08 - 3 - BEEN RECEIVED OR OBTAINED DURING THE YEAR. IN MY CA SE THE LIABILITY OF RS.663038/- PERTAINS TO THE ASSTT.YEAR 2007-08, SEC TION 41 [1] [A] IS NO MORE APPLICABLE. UNDER SUCH CIRCUMSTANCES THE ADDITION O F RS.663038/- IS TO BE DELETED. [5] THE LEARNED C.I.T.[A] HAS ERRED IN CONFIRMING A DDITION OF RS.66000/- ON ACCOUNT OF LOW WITHDRAWALS FOR HOUSE HOLD EXPENSES. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ADDITION OF RS. 66000 /- IS TO BE DELETED, KEEPING IN VIEW THE HUGE ADDITION MADE TO THE RETURNED INCO ME AND PRESENCE OF ADEQUATE HOUSE HOLD EXP. SHOWN IN THE RETURN OF INC OME. [6] THE LEARNED C.I.T.[A] HAS ERRED IN OVERLOOKING THE CLAIM OF SETOFF OF UNABSORBED DEPRECIATION OF EARLIER YEARS AS WELL AS OF CURRENT YEAR, PUT UP BEFORE HIM DURING THE APPELLATE PROCEEDINGS. ON THE FACTS AND IN THE CIRCUMSTANCES AND AS PER APPLICATION U/S 154 SUBMIT TED TO THE ASSESSING OFFICER BEFORE APPELLATE PROCEEDINGS, SUCH SET OFF SHOULD BE GIVEN AGAINST THE ASSESSED INCOME. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE APPELLANT- ASSESSEES. ON PREVIOUS OCCASION, I.E. ON 27/10/201 6 ALSO DID NOT APPEAR. LAST NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE ON 15/07/2016 FIXING THE DATE OF HEARING ON 18/08/2016. DESPITE THIS, THE ASSESSEE(S) REMAINED UNREPRESENTED. IN THE AFOREMENTIONED PECU LIAR FACTS AND CIRCUMSTANCES OF THE CASE, IN THE ABSENCE OF ANY RE PRESENTATION ON BEHALF OF THE ASSESSEES OR PETITION SEEKING TIME, IT CAN BE SAFELY PRESUMED THAT THE ASSESSEES ARE NOT SERIOUS IN PURSUING THE APPEA LS FILED. ACCORDINGLY, THE ONLY ALTERNATIVE LEFT IS TO DISMISS THE APPEALS OF THE ASSESSEES IN LIMINE . SUPPORT IS DRAWN FROM THE ORDER OF THE TRIBUNALS IN COMMISSIONER OF INCOME TAX VS. MULTI PLAN INDIA (P) LTD.; 38 ITD 320 (DEL) AND ESTATE OF LATE TUKOJIRAO HOLKA VS. CWT: 2 23 ITR 480 (M.P.). ITA NOS.2742, 2833, 2832 & 2834/AHD/2013 SATISHKUMAR HASMUKHLAL MARWALA & ORS VS. ITO ASST.YEAR 2007-08 - 4 - 4. BEFORE PARTING, IT IS APPROPRIATE TO ADD THAT I N CASE THE ASSESSEES ARE ABLE TO SHOW THAT THERE WAS A REASONABLE CAUSE FOR NON-REPRESENTATION ON THE DATE OF HEARING, IT WOULD BE AT LIBERTY IF SO A DVISED TO PRAY FOR A RECALL OF THIS ORDER. 5. IN THE RESULT, ALL THE FOUR APPEALS OF THE ASSE SSEE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 09 / 01 /2017 SD/- .. ( ) ( R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 09/ 01 /2017 ,$.., '.../ T.C. NAIR, SR. PS !'#'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. -.-/0 ! 1 / CONCERNED CIT 4. ! 1 ( ) / THE CIT(A)-II, SURAT 5. 2'34 /0 , $ /0( , . / DR, ITAT, AHMEDABAD 6. 467 8# / GUARD FILE. / BY ORDER, 2 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD