PRAVIN PHARMA, MUMBAI V. ITO 23(3)(1), MUMBAI

ITA 338/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8492 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 25-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 338/MUM/2013 (ASSESSMENT YEAR: 2007-08) M/S. PRAVIN PHARMA VS. INCOME TAX OFFICER - 23(3)(1) 244/245, GOVIND UDYOG BHAVAN BAL RAJESHWAR ROAD, MODEL TOWN MULUND (W), MUMBAI 400080 BANDRA, MUMBAI PAN AAAFP6446K APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI ABHISHEK SHARMA DATE OF HEARING: 25.01.2017 DATE OF PRONOUNCEMENT: 31.01.2017 O R D E R PER JASON P. BOAZ, A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)- 34, MUMBAI DATED 20.11.2012 FOR A.Y. 2007-08. 2. THIS APPEAL WAS FIXED FOR HEARING ON MANY OCCASIONS . WHENEVER THE BENCH DID NOT FUNCTION, THIS APPEAL WAS ADJOURNED T HROUGH DISPLAY AS PER NOTICE BOARD. ON OTHER DAYS ON WHICH THE HEARINGS W ERE FIXED, EITHER NONE WAS PRESENT FOR THE ASSESSEE OR ADJOURNMENTS WERE S OUGHT ON THE ASSESSEES REQUEST. IN THE LAST TWO HEARINGS, SINCE NONE WAS PRESENT FOR THE ASSESSEE, THE BENCH HAD DIRECTED SERVICE OF NOTICE ON THE ASSESSEE BY RPAD; TO WHICH WE FIND THERE WAS NO RESPONSE. ON 25 .01.2017, WHEN THE CASE WAS CALLED FOR HEARING, NONE WAS PRESENT FOR T HE ASSESSEE, BUT THE LEARNED D.R. FOR REVENUE WAS PRESENT AND READY TO A RGUE THE MATTER. IN THESE CIRCUMSTANCES, AS LAID OUT ABOVE, WE ARE OF T HE VIEW THAT THE ASSESSEE IS NOT SERIOUS ABOUT PURSUING THIS APPEAL AND THEREFORE PROCEED TO DISPOSE OFF THIS APPEAL WITH THE ASSISTANCE OF T HE LEARNED D.R. AND THE MATERIAL ON RECORD. ITA NO. 338/MUM/2013 M/S. PRAVIN PHARMA 2 3. THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL A RE AS UNDER: - 1) YOUR APPELLANT IS A PARTNERSHIP FIRM. IT HAD FI LED ITS RETURN OF INCOME ON 27 TH OCT, 2007, DECLARING A NET TAXABLE LOSS OF RS. 2,31,533. 2) THE CASE WAS SELECTED UNDER SCRUTINY AND AN ORD ER WAS PASSED U/S 1433) OF INCOME-TAX ACT, 1961. YOUR APPELLANT H AVE PREFERRED AN APPEAL AGAINST ORDER U/S 143(3) OF INC OME-TAX ACT, 1961. 3) THE CASE WAS HEARD BY LEARNED COMMISSIONER OF I NCOME-TAX (APPEAL)-34. THE CASE WAS PARTLY ALLOWED. NOW YOUR APPELLANT IS PRESSING FOR A POINT ON WHICH HE HAS APPROACHED YOU R OWNER 4) THE LEARNED COMMISSIONER OF INCOME TAX -(APPEAL) - 34 HAS NOT ALLOWED U/S 43(B) RS.27,903 ON THE GROUND THAT THE DOCUMENTARY EVIDENCE IS NOT TO BE PROVIDED. YOUR AP PELLANT HAVE REQUESTED FOR PROVIDING SOME TIME TO PRODUCE THE EV IDENCE SAME IS NOT PROVIDED HENCE THE SAME IS ADDED TO INCOME. 5) ADDITION U/S. 68 OF INCOME TAX ACT. YOUR APPELLA NT HAS A CASH OF RS.388000/- ONE OF THE PARTNER THE AMOUNT WAS REQUI RE FOR MAKING A PAYMENT OF CUSTOM DUTY AND RETIRING THE IM PORT DOCUMENT. THE EVIDENCE IN RELATION TO SUCH PAYMENTS AND THE CAUSES FOR RECEIPT IN CASH, BEFORE HOUR ABLE CIT (A PPEAL). THE HOURABLE CIT (APPEAL) COPY OF BANK STATEMENT OF PAR TNER FOR WHICH YOUR APPELLANT HAS REQUESTED FOR SOME TIME. T HE SAME IS NOT PROVIDED AND HENCE AN ADDITION WAS UPHELD. YOUR APPELLANT STARTS THAT AS PER RULE 6DD OF I T, RULE 1961, AN PAYMENT IN CASH AND RECEIPT OF CASH IS ALLOWED UNDE R UNFORESEEN CIRCUMSTANCES. YOUR APPELLANT STATES THAT THE LEARNED C.I.T. HAD O VERLOOKED THE REQUEST FOR SUBMISSION AND IN ORDER TO COMPLETE TIM E BARRING CASE HAVE ADDED/DISALLOWED THE EXPENSES, PAYMENTS AND RE CEIPTS. YOUR APPELLANT STATES THAT IT IS EVIDENT FROM THE R ECORDS THAT SUCH ADDITION IS BAD IN LAW AND SHOULD NOT HAVE BEEN DON E. YOUR APPELLANT REQUEST YOUR HONOR TO SET ASIDE SUCH ADDI TION & PROVIDE A JUSTICE. 4. GROUNDS 1 TO 3 4.1 THESE GROUNDS (SUPRA) ARE GENERAL STATEMENTS AN D DO NOT CALL FOR ANY ADJUDICATION THEREON. THE SAME ARE ACCORDINGLY DISM ISSED AS INFRUCTUOUS. 5. GROUND NO. 4 DISALLOWANCE UNDER SECTION 43(B) ` `` ` 27,903/- 5.1 IN THIS GROUND THE ASSESSEE CONTENDS THAT THE L EARNED CIT(A) HAS UPHELD THE DISALLOWANCE OF ` 27,903/- UNDER SECTION 43(B) OF THE INCOME ITA NO. 338/MUM/2013 M/S. PRAVIN PHARMA 3 TAX ACT, 1961 (IN SHORT 'THE ACT') ON THE GROUND TH AT DOCUMENTARY EVIDENCE WAS NOT PROVIDED INSPITE OF THE ASSESSEE SEEKING TI ME TO PRODUCE THE SAME. 5.2.1 WE HAVE HEARD THE LEARNED D.R. FOR REVENUE AN D PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. IN PAR A 2.7 OF THE IMPUGNED ORDER THE LEARNED CIT(A) HAS, INTER ALIA, DISMISSED THE ASSESSEES APPEAL ON THIS GROUND; HOLDING AS UNDER: - 2.7 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE AR OF THE APPELLANT INFORMED THAT THE ABOVE GROUNDS ARE NOT P RESSED AND HENCE THESE GROUNDS OF APPEAL ARE DISMISSED AS NOT PRESSE D. 5.2.2 NOWHERE IN THE IMPUGNED ORDER IS IT RECORDED, AS CONTENDED BY THE ASSESSEE, THAT EITHER THE LEARNED CIT(A) HAS CONFIR MED THE DISALLOWANCE UNDER SECTION 43(B) OF THE ACT FOR WANT OF PRODUCTI ON OF EVIDENCE IN THIS REGARD OR THAT THE ASSESSEE HAD SOUGHT ADDITIONAL T IME FOR FILING THESE DETAILS. THE CONTENTIONS RAISED BY THE ASSESSEE IN THIS GROUND ARE FACTUALLY INCORRECT, SINCE THE ASSESSEES APPEAL ON THIS ISSU E WAS DISMISSED BY THE LEARNED CIT(A) AS THE GROUND RAISED IN THIS REGARD WAS NOT PRESSED. EVEN OTHERWISE, NO DOCUMENTARY EVIDENCE HAS BEEN BROUGHT ON RECORD TO CONTRAVENE THE FINDING OF THE LEARNED CIT(A) ON THI S ISSUE. FINDING NO MERIT IN THE ASSESSEES GROUND NO. 2, WE DISMISS THE SAME . 6. GROUND NO. 5 ADDITION UNDER SECTION 68 OF THE ACT ` `` ` 3,88,321/- 6.1 IN THIS GROUND, THE ASSESSEE CONTENDS THAT THE LEARNED CIT(A) HAD UPHELD THIS ADDITION SINCE IT WAS NOT ABLE TO FURNI SH COPY OF BANK STATEMENT, ETC. THE ADDITION OF ` 3,88,000/- WAS MADE UNDER SECTION 68 OF THE ACT; WHICH WAS IN RESPECT OF AN AMOUNT TAKEN FR OM ONE OF THE PARTNERS FOR PAYMENT OF CUSTOMS DUTY. IT IS CONTENDED THAT T HE ASSESSEE HAD SOUGHT TIME TO FILE THE DETAILS/DOCUMENTARY EVIDENCE WHICH WAS NOT ALLOWED BY THE LEARNED CIT(A). 6.2.1 WE HAVE HEARD THE LEARNED D.R. FOR REVENUE AN D PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. THE LE ARNED CIT(A) HAS CONSIDERED AND ADJUDICATED THIS ISSUE AS UNDER AT P ARAS 2.15 TO 2.17 OF THE IMPUGNED ORDER: - 2.15 THE ASSESSING OFFICER HAD ANALYZED THE CAPITA L ACCOUNT OF PARTNERS AND FOUND THAT RS.3,88,321/- WAS INTRODUCE D BY CASH FROM ITA NO. 338/MUM/2013 M/S. PRAVIN PHARMA 4 SHRI VIANCHI A SHAH. SINCE THE APPELLANT COULD NOT FURNISH ANY EXPLANATION, THE ASSESSING OFFICER WAS NOT SATISFIE D WITH THE INTRODUCTION OF THE ABOVE CREDIT AND HENCE ADDED TH E SAME U/S 68 OF THE IT ACT, 1961. 2.16 THE SUBMISSIONS OF THE APPELLANT BEFORE ME IS AS UNDER: 'DURING THE YEAR UNDER REVIEW, THE FIRM HAVE ACCEPT ED A CASH AMOUNTING TO RS.3,88,000/- FROM ONE OF THE PARTNER SHRI VIRANCHI A SHAH. SHRI VIRANCHI A SHAH IS BASICALLY AN ENGINEER AND WORKING WITH MULTINATIONAL COMPANY. RECENTLY HE HAD JOINTED M/S. PRAVIN PHARMA AS PARTNER. HE HAD A BAN K ACCOUNT WITH OTHER BANK. THE FIRM HAD TO PAY THE CUSTOM DUT Y AND HAD TO RETIRE L.C. DRAWN ON M/S. SICHUAN JIUXIN TRADE C O. LTD., CHINA. IN ORDER TO AVOID PENALTY & DEMURRAGE, ETC. SHRI VIRANCHI A SHAH HAD WITHDRAWN AN AMOUNT FROM HIS AC COUNT AND DEPOSITED THE SAME IN THE FIRM'S BANK ACCOUNT. AFTER DEPOSITING CASH IN BANK OF FIRM, THE L.C. AND CUSTO M PAYMENT CLEARED ON THE SAME DAY.' 2.17 I HAVE CAREFULLY CONSIDERED THE ABOVE SUBMISSI ON. DURING THE COURSE OF APPELLATE PROCEEDINGS ALSO, THE APPELLANT FAILED TO FURNISH ANY EVIDENCE THAT CASH OF RS.3,88,321/- WAS RECEIVE D FROM SHRI VIRANCHI A SHAH. THE AR OF THE APPELLANT THOUGH MEN TIONED THAT WITHDRAWAL FROM BANK ACCOUNT OF SHRI VIRANCHI A SHA H WAS GIVEN TO THE PARTNER, BUT HE FAILED TO FURNISH ANY EVIDENCE TO SHOW THAT THERE WERE WITHDRAWALS REALLY FROM THE BANK ACCOUNT. IN V IEW OF THIS, THE ADDITION MADE BY THE ASSESSING OFFICER IS HEREBY SU STAINED. THIS GROUND OF APPEAL IS DISMISSED. 6.2.2 THE AVERMENT OF THE ASSESSEE THAT THE AFORESA ID ADDITION UNDER SECTION 68 OF THE ACT WAS MADE INSPITE OF THE ASSES SEE SEEKING FURTHER TIME TO FILE ADDITIONAL EVIDENCE IN THIS REGARD IS NOT B ORNE OUT FROM A PERUSAL OF THE IMPUGNED ORDER (SUPRA). EXCEPT FOR RAISING THIS GROUND, WE FIND THAT THE ASSESSEE HAS FAILED TO BRING ON RECORD ANY DOCUMENT ARY EVIDENCE TO CONTRAVENE THE FINDING OF THE LEARNED CIT(A) IN THE IMPUGNED ORDER. FINDING NO MERIT IN THIS GROUND NO. 3 RAISED BY THE ASSESSE E, WE DISMISS THE SAME. 7. IN THE RESULT, THE ASSESSEES APPEAL FOR A.Y. 2007- 08 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JANUARY, 2017. SD/ - SD/ - (RAM LAL NEGI) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 31 ST JANUARY, 2017 ITA NO. 338/MUM/2013 M/S. PRAVIN PHARMA 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -34, MUMBAI 4. THE CIT - 23, MUMBAI 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.