ALL INDIA MANUFACTURES ORGANIZATION, MUMBAI V. ITO WD 2(1)(1), MUMBAI

ITA 3437/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9105 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITRA
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM ITA NO. 3437 / MUM/20 17 & 3438/MUM/2017 ( ASSESSMENT YEAR : 2010 - 11 & 2011 - 12 ) ALL INDIA MANUFACTURERS ORGANISATION, 4 TH FLOOR, JEEVAN SAHAKAR BUILDING, SIR P.M. ROAD FORT, MUMBAI 400 001 VS. ITO WD 2(1)(1) AAYAKAR BHAVAN MUMBAI 400 020 PAN/GIR NO. AALCA5194P APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI SATISH MODY REVENUE BY SHRI S.K. MITRA DATE OF HEARING 07 / 09 /201 7 DATE OF PRONOU NCEME NT 09 / 10 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEALS FILED BY ASSESSEE AGAINST THE EX - PARTE ORDER OF CIT(A) - 3, MUMBAI DATED 28/02/2017 IN THE MATTER OF ORDER PASSED U/S.143(3) R.W.S. 147 OF INCOME TAX ACT, 1961 . 2. IN THE APPEAL SO FILED FOR THE A.Y.2010 - 11, ASSESSEE IS AGGRIEVED FOR ADDITION OF RS.50,000/ - IN RESPECT OF RENTAL INCOME SHOWN BY THE ASSESSEE. 3. I HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT THIS GROUND WAS NOT RAISED BY TH E ASSESSEE BEFORE THE CIT(A). MOREOVER, ASSESSEE NEVER APPEARED BEFORE THE CIT(A) INSPITE OF GIVING SO MANY OPPORTUNITIES BY THE CIT(A). THE CIT(A) HAS FIXED THE APPEAL ON ITA NO. 3437/MUM/2017 & 3438/MUM/2017 ALL INDIA MANUFACTURERS ORGANISATION 2 21/11/2016, 14/12/2016 BUT NOBODY APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURN MENT PETITION WAS FILED. THE CIT(A) ALSO ISSUED SHOW CAUSE NOTICE FIXING THE APPEAL ON 22/12/2016, HOWEVER, NOBODY APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE, THE CIT(A) HAS DECIDED THE ISSUE ON MERIT. AFTER GIVING DUE REASONING THE CIT(A) HAS CONFIRMED THE ORDER OF THE AO BY OBSERVING THAT ASSESSEE HAS NOT POINTED THE GRIEVANCE IT HAS ABOUT THE ADDITION UNDER THE PARTICULAR HEAD OF INCOME. PRECISE OBSERVATION OF CIT(A) WAS AS UNDER: - 4. AFTER SUBMISSION OF THIS APPEAL ON 21/04/2016, A NUMBER OF NOTICES WERE ISSUED FROM TIME TO TIME TO REPRESENT THEIR CASE AND TO FURNISH EVIDENCES IN SUPPORT OF THEIR GROUNDS OF APPEAL MENTIONED ABOVE. DETAIL OF OPPORTUNITIES AFFORDED TO THE APPELLANT ARE GIVEN AS UNDER: - SR. NO. HEARING FIXED VIDE NOTICE U/S.250 STATUS 1 ON 21.11.2016, NOTICE SENT TO THE APPELLANT FIXING THE CASE FOR HEARING ON 08.12.2016 AT 11.30 A.M.. ON 08.12.2016, NEITHER ANYBODY ATTENDED NOR WAS ANY APPLICATION FOR ADJOURNMENT RECEIVED. 2 ON 14.12.2016, SHOW CAUSE NOTICE ISSUED TO THE APPELLANT G IVING COMPLETE GIVING DETAILS OF THE NOTICES ISSUED BY THIS OFFICE AND THEIR NON - COMPLIANCE. THE CASE WAS FIXED FOR HEARING ON 22.12.2016 AT 11.00 AM. ON 22.21.2016, ON THAT DATE NEITHER ANYBODY ATTENDED NOR WAS ANY APPLICATION FOR ADJOURNMENT RECEIVED. A S NONE ATTENDED, THE CASE IS DECIDED ON MERITS, CONSIDERING THE MATERIAL ON RECORD. ITA NO. 3437/MUM/2017 & 3438/MUM/2017 ALL INDIA MANUFACTURERS ORGANISATION 3 4.1 VIDE THIS OFFICE LETTER DATED 14.12.2016, A SHOW CAUSE NOTICE WAS ISSUED TO THE APPELLANT; WHEREIN THE APPELLANT WAS ASKED TO SHOW CAUSE AS TO WHY THE APPEAL SHOULD NOT BE DECIDED ON MERIT CONSIDERING THE MATERIAL ON RECORD. THE CASE WAS FIXED FOR HEARING ON 22.12.2016 AT 11.00 AM. THE SHOW CAUSE NOTICE ISSUED TO THE APPELLANT IS REPRODUCED AS UNDER: THE PRINCIPAL OFFICER, M/S. ALL INDIA MANUFACTURES ORGANIZATION, RA JESH NEMICHAND JAIN DIRECTOR, BOKADIYA MENSION, 1 ST FLOOR, 229, PRINCESS STREET, MUMBAI.AOO 002. SUB: - SHOW CAUSE NOTICE UNDER SECTION 250 OF THE I.T. ACT, 1961 - PAN: - AALCA5194P - A.Y. 2010 - 11 - CIT(A) - 3/IT - 64/ TR.3O/ITO 2(1)(2)/2016 - 17 ~ REGARDING - *** **** THE APPELLANT HAS FILED APPEAL UNDER SECTION 2$6A OF THE I.T. ACT, AGAINST THE ORDER UNDER SECTION 143(3) R.W.5.147 OF THE INCOME - TAX ACT, 1961 (THE ACT') ON 21.04.2015. THE ABOVE CASE WAS RECEIVED ON TRANSFERRED FROM, THE OFFICE OF LD.CIT (APPEAL ) - 4, MUMBAI ON 20.10.2016. SUBSEQUENTLY, NOTICE U/S.25O OF THE ACT WAS ISSUED ON 21.11.2016. THE ABOVE NOTED APPEAL AGAINST THE ORDER UNDER SECTION 143(3) R.W.5.147 OF THE ACT PREFERRED BY YOU HAS BEEN FIXED FOR HEARING ON 8.12.2016 AT 11.30 A.M. AND REQUIRE D TO ATTEND IN PERSON OR THROUGH AUTHORIZED REPRESENTATIVE. 2. IN RESPONSE TO THE ABOVE NOTICE, NEITHER ANYBODY ATTENDED NOR WAS ANY APPLICATION FOR ADJOURNMENT RECEIVED. 3. AS DISCUSSED ABOVE, AN OPPORTUNITY OF BEING HEARD WERE AFFORDED WHICH WERE NOT A VAILED BY YOU. SINCE, YOU DID NOT ATTEND ON THE HEARING FIXED; IT IS IMPLICIT THAT, YOU HAVE NOTHING TO SAY IN SUPPORT OF GROUNDS OF APPEAL. 4. IN VIEW OF YOUR NON - COMPLIANCE ATTITUDE, YOU ARE HEREBY 'SHOW CAUSE' AS TO WHY YOUR APPEAL SHOULD NOT BE DISMIS SED FOR LACK OF EXPLANATION AND EVIDENCES IN SUPPORT OF THE GROUND TAKEN IN THE APPEAL. YOUR CASE IS FINALLY FIXED FOR HEARING ON 22.12.2016 AT 11.00 A.M POSITIVELY TO SUBMIT THE DOCUMENTARY EVIDENCE, IF ANY, IN SUPPORT OF GROUNDS OF APPEAL TAKEN IN THE AB OVE APPEAL, FAILURE TO WHICH YOUR APPEAL WILL BE DECIDED ON MERIT. ITA NO. 3437/MUM/2017 & 3438/MUM/2017 ALL INDIA MANUFACTURERS ORGANISATION 4 SD/ - (SSKEMWAL) COMMISSIONER OF INCOME - TAX (APPEALS)~3, MUMBAI. 4.2 IN RESPONSE TO THE ABOVE SHOW CAUSE NOTICE NEITHER ANYBODY ATTENDED NOR ANY APPLICATION FOR ADJOURNMENT WAS RECE IVED. THIS CLEARLY INDICATES THAT THE APPELLANT HAS NO EVIDENCE TO PRODUCE IN CONTRARY TO THE FINDING OF THE AO AND DOES NOT INTEND TO GIVE ANY EXPLANATION IN SUPPORT OF THEIR GROUNDS OF APPEAL. THEREFORE, THE APPEAL IS DECIDED ON MERITS, CONSIDERING THE M ATERIAL ON RECORD. DECISION 5. I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED THE FACTUAL MATRIX OF THE CASE AS ALSO THE APPLICABLE LEGAL POSITION. 6. GROUND NO. I RELATES ADDITION TO THE TOTAL INCOME OF THE ASSESSEE AMOUNTING TO RS. 4,55,0007 - U/S 143(3) R.W.S.147 OF THE ACT. THE APPELLANT HAS NOT POINTED THE GRIEVANCE IT HAS ABOUT THE ADDITION UNDER THE PARTICULAR HEAD OF INCOME. FURTHER, THE APPELLANT WAS GIVEN SUFFICIENT NUMBER OF O PPORTUNITIES OF BEING HEARD WHICH THE APPELLANT DID NOT PREFER TO AVAIL. SINCE THE APPELLANT HAS FAILED TO FURNISH ANY EXPLANATION OR EVIDENCE IN SUPPORT OF ITS CLAIM, I DID NOT FIND ANY REASON TO INTERFERE IN THE FINDINGS OF THE AO, THEREFORE, GROUND NO. 1 IS DISMISSED. 7. GROUND NO. 2 RELATES TO LEVYING INTEREST U/S.234A, 2346, 2340 AND 2340 OF THE INCOME - TAX ACT, 1961. AS CHARGING OF INTEREST U/S 234A, 2346, 234C AND 2340 OF THE IT ACT, 1961 IS MANDATORY AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF ANJUM H. GHASWALA, 252 ITR I (SC), GROUND NO. 2 IS DISMISSED. 8. GROUND NO. 3 RELATES TO INITIATING OF PENALTY U/S 27I(I)(C) OF THE IT ACT, 1961. SINCE, ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE TWO SEPARATE PROCEEDINGS AND THE AO HAS NOT L EVIED ANY PENALTY SO FAR, THEREFORE, THIS GROUND IS PREMATURE AND INFRUCTIOUS AND THE SAME IS REQUIRED TO BE DISMISSED. THEREFORE, GROUND NO.3 IS DISMISSED. 9. GROUND NO.4 IS GENERAL IN NATURE, WHICH DOES NOT REQUIRE ANY ADJUDICATION HENCE DISMISSED. 10. I N THE RESULT, THE APPEAL FOR A.Y.2011 - 12 IS DISMISSED. ITA NO. 3437/MUM/2017 & 3438/MUM/2017 ALL INDIA MANUFACTURERS ORGANISATION 5 4. I HAD GIVEN A CAREFUL THOUGHT TO THE ORDER PASSED BY THE CIT(A) AND FOUND THAT INSPITE OF GIVING SO MANY OPPORTUNITIES, THE ASSESSEE DID NOT APPEAR NOR ANY ADJOURNMENT PETITION WAS FILED. EVEN BEF ORE THE TRIBUNAL NO JUSTIFICATION WAS ADVANCED BY LEARNED AR FOR NOT APPEARING BEFORE CIT(A). EVEN THE GROUND RAISED BEFORE US WITH REGARD TO THE ADDITION IN RENTAL INCOME WAS NOT THERE BEFORE THE CIT(A). WITH RESPECT TO THE ALLEGED DISALLOWANCE OF EXPENSE S / DEPRECIATIO N, NOTHING WAS PLACED BEFORE US, SO AS TO PERSUADE ME TO DEVIATE FROM THE CONCLUSIONS ARRIVED BY LOWER AUTHORITIES. A CCORDINGLY I DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE AO AND CIT(A). 5. SIMILARLY, IN THE ASSESSMENT YEAR 2011 - 1 2, THE CIT(A) HAS ISSUED VARIOUS NOTICES ASKING THE ASSESSEE TO APPEAR BUT NOBODY APPEARED NOR ANY ADJOURNMENT PETITION WAS FILED. THEREFORE, FOLLOWING THE RE ASONING GIVEN FOR A.Y.2010 - 11, I CONFIRM THE ORDER PASSED BY CIT(A). 6. IN THE RESULT, BOTH THE AP PEALS OF ASSESSEE ARE DISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 09 / 10 /2017 S D/ - ( R.C.SHARMA ) ACCOUNTANT MEMBER MUMBAI ; DATED 09 / 10 /201 7 KARUNA SR. PS ITA NO. 3437/MUM/2017 & 3438/MUM/2017 ALL INDIA MANUFACTURERS ORGANISATION 6 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//