Prem Casting (P) Ltd., Muzaffarnagar V. ACIT, Muzaffarnagar

ITA 3291/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0054 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 24-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Section: 143(3); 115JB; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DLEHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITANO. 3291/DEL/2017 ASSESSMENT YEAR: 2007-08 PREM CASTING (P) LTD., VS. ACIT, CIRCLE-2, (NOW KNOWN AS TRIMURTI CONCASTPVT. LTD., MUZAFFARN AGAR MEERUT ROAD, MUZAFFARNAGAR. PAN AACCP3753E (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SH. SURENDER PAL, SR. DR. DATE OF HEARING: 27/11/2019 DATE OF ORDER : 31/12/2019 ORDER PER K. NARASIMHA CHARY, J.M. AGGRIEVED BY THE ORDER DATED 15/3/2017 IN APPEAL NO . 95/15- 16/MZR PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), MUZAFFARNAGAR (LD. CIT(A)), FOR THE ASSESSMENT YE AR 2007-08, CONFIRMING THE PENALTY UNDER SECTION 271(1)( C ) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) M/S PREM CASTINGS (P) LT D (M/S TRIMURTI CONCAST PRIVATE LIMITED) (THE ASSESSEE) PREFERRED THIS APPEAL. 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN THE BUSINESS OF MANUFACTURING OF IRON AND STEEL. FOR THE ASSESSMENT YEAR 2007-08 IT HAD FILED ITS RETURN OF INCOME ON 31/10/2007 DECLARING BOOK PROFIT OF RS.21,77,195/- ON WHICH THE ASSESSEE HAD PAID TAX A S PER THE PROVISIONS UNDER SECTION 115JB OF THE ACT. ASSESSMENT UNDER SE CTION 143(3) OF THE ACT WAS COMPLETE BY ORDER DATED 24/12/2009 BY MAKIN G ADDITION OF RS.17,238/- ON ACCOUNT OF LATE PAYMENT OF EMPLOYEES CONTRIBUTION TO ESIC, AND RS. 3.46 CRORES ON ACCOUNT OF UNEXPLAINED SHARE APPLICATION MONEY UNDER SECTION 68 OF THE ACT AND ALLOWING SET OFF OF BROUGHT FORWARD LOSSES TO THE TUNE OF RS.90,90,248/- AS AGA INST RS.1,10,99,562/- AS CLAIMED BY THE ASSESSEE. 3. AGGRIEVED BY SUCH AN ADDITION, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) VID E ORDER DATED 17/3/2011 DELETED THE ADDITION OF RS. 3.46 CRORES O N ACCOUNT OF UNEXPLAINED SHARE APPLICATION MONEY AND DIRECTED SE T OFF OF LOSSES CLAIMED BY THE ASSESSEE AT RS.1,10,99,562/-. REVENU E CHALLENGED THE DELETION OF RS. 3.46 CRORES ADDED BY THE LEARNED AS SESSING OFFICER ON ACCOUNT OF UNEXPLAINED SHARED APPLICATION MONEY BEF ORE THE TRIBUNAL AND THE TRIBUNAL BY ORDER DATED 11/9/2015 UPHELD TH E ADDITION AND REVERSED THE ORDER OF THE LD. CIT(A). 4. PENALTY PROCEEDINGS UNDER SECTION 271(1)( C ) OF THE ACT WERE INITIATED AND CONCLUDED BY ORDER DATED 29/3/2016 WI TH THE LEVY OF PENALTY OF RS.77,09,061/- . ASSESSEE FILED APPEAL B EFORE LD. CIT(A) BUT NEVER APPEARED BEFORE SUCH A FORUM. HAVING GRANTED SUFFICIENT OPPORTUNITY TO THE ASSESSEE, LD. CIT(A) RECORDED TH AT THE ASSESSEE HAS NO INTEREST IN PURSUING THE APPEAL AND, THEREFORE, HE DISPOSED OF THE APPEAL 3 ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. LD. C IT(A) DISCUSSED THE FACTS OF THE CASE AND FOUND THAT NOTHING WAS BROUGHT ON R ECORD BEFORE THE LD. ASSESSING OFFICER OR DURING THE APPELLATE PROCEEDIN GS AGAINST THE LEVY OF PENALTY, TO ESTABLISH THE IDENTITY OF THE SHARE APP LICANTS BY FURNISHING EVIDENCE OF THEIR EXISTENCE AT THE ADDRESS GIVEN AN D NOT EVEN A SINGLE APPLICANT WAS PRODUCED BEFORE THE ASSESSING OFFICER , IN SPITE OF GRANTING OF SUFFICIENT TIME. LD. CIT(A), THEREFORE, HELD THA T THE ASSESSEE FAILED TO DISCHARGE ONUS CAST ON IT AND THEREFORE WAS GUILTY OF FURNISHING OF INACCURATE PARTICULARS OF INCOME IN THE RETURN OF I NCOME. CONSEQUENTLY LD. CIT(A) CONFIRMED THE PENALTY AND DISMISSED THE APPEAL. 5. WHEN THE MATTER IS CALLED, NEITHER THE ASSESSEE NOR ANY AUTHORISED REPRESENTATIVE ENTERED APPEARANCE. IT COULD BE SEEN FROM THE RECORD THAT THE NOTICE SENT TO THE ADDRESS GIVEN IN FORM NO. 36 IS RETURNED WITH THE ENDORSEMENT OF THE POSTAL SERVANT THAT THE ADDRESSE E LEFT. IF THE ASSESSEE IS AVAILABLE IN SUCH ADDRESS, SUCH NOTICE SHOULD HA VE BEEN SERVED ON THE ASSESSEE. IF FOR ANY REASON, THE ASSESSEE IS NOT AV AILABLE THERE, IT IS FOR THE ASSESSEE TO MAKE ARRANGEMENTS FOR SERVICE OF SUCH N OTICE BY FURNISHING THE ADDRESS WHERE THE ASSESSEE WOULD BE AVAILABLE, OR TO DELIVER IT TO SOME AUTHORISED PERSON, OR BY MAKING REQUEST TO THE POSTAL DEPARTMENT TO DETAIN THE MAIL TILL THE ASSESSEE CLAIMS THE SAM E. SINCE THE ASSESSEE DOES NOT SEEM TO HAVE ADOPTED ANY OF THESE METHODS, WE ARE THE CONSIDERED OPINION THAT THERE IS NO POINT IN SENDIN G THE NOTICE TO THE VERY SAME ADDRESS TIME AND AGAIN. AT THE SAME TIME, NO NEW ADDRESS OF THE ASSESSEE IS AVAILABLE WITH THE TRIBUNAL OR WITH THE DEPARTMENT. BASING ON THE RECORD WE, THEREFORE, PROCEED TO HEAR THE COUNSEL FOR REVENUE AND DECIDE THE MATTER ON MERITS. 4 6. IT IS THE SUBMISSION OF THE LD. DR THAT THE FACT -FINDING WRITTEN BY THE LEARNED ASSESSING OFFICER WAS RESTORED BY THE T RIBUNAL AND TILL TODAY THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE FIN DINGS OF THE TRIBUNAL ARE DISTURBED. THERE IS NO MATERIAL BEFORE US TO CO ME TO A DIFFERENT CONCLUSION OR TO SAY THAT THE LEVY OF PENALTY IN TH IS MATTER CANNOT BE SUSTAINED. IT IS FOR THE ASSESSEE TO ESTABLISH THAT THE PENALTY ORDER IS BAD UNDER LAW. IN THE CIRCUMSTANCES WE FIND NO REASON T O DEVIATE THE VIEW TAKEN BY THE AUTHORITIES BELOW. CONSEQUENTLY, WE UP HOLD THE LEVY OF PENALTY AND FIND THE GROUNDS OF APPEAL AS DEVOID OF MERITS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. PRONOUNCED IN OPEN COURT ON THIS THE 31ST DECEMBER , 2019. SD/- SD/- (G.S. PANNU) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED:31 /12/2019 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI