VIVEK VINAYAK SANE, MUMBAI V. ITO 22(2)(2), NAVI MUMBAI

ITA 3712/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3882 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 10-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 25-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIKRAM BATRA
• Keywords: Business income; Salary income; Opportunity of being heard
• Section: 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI JASON P. BOAZ (AM) AND SHRI SANDEEP GOS AIN (JM) ITA NO. 3712 /MUM/2012 ASSESSMENT YEAR: 2005-06 VIVEK VINAYAK SANE. 302, MARYLAND APARTMENT, D.K.SANDU, CHEMBUR, MUMBAI-400071 PAN : AALPS7818R VS. THE ITO - 22(2) ( 2 ), VASHI RAILWAY STATION COMPLEX, TOWER NO. 6 VASHI, NAVI MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI. VIKRAM BATRA DATE OF HEARING: 15/02/2016 DATE OF PRONOUNCEMENT: 19/02/2016 O R D E R PER JASON P. BOAZ, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE CIT(APPEALS)- 33, MUMBAI DT. 27/03/2012 FOR ASST. YEAR 2005-06. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER:- 2.1 THE ASSESSEE, EARNING INCOME FROM SALARY AND F ROM TOURS AND TRAVELS, FILED HIS RETURN OF INCOME FOR ASST. YEAR 2005-06 ON 06/05/20 05 DECLARING TOTAL INCOME OF RS. 18,06,061/- AND AGRICULTURAL INCOME OF RS. 40,5 1,000/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT FINALLY CA ME TO BE COMPLETED EX-PARTE U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) VIDE ORDER DT. 20/12/2007, WHEREIN THE INCOME OF THE ASSESSEE WAS DETERMINED AT RS. 2 ITA NO. 3712 /MUM/2012 ASSESSMENT YEAR: 2005-06 1,37,61,335/-. THE ASSESSEES APPEAL BEFORE THE CIT (A)-33, MUMBAI WAS DISMISSED VIDE THE ORDER OF THE CIT(A)-XII, MUMBAI DT. 22/01/ 2009. AGAINST THIS ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL, WHICH WAS SET ASIDE THE ORDER OF THE CIT(A) AND RESTORED THE MATTER BACK TO HIS FILE FO R DENOVO HEARING AND ADJUDICATION AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. THE LD. CIT(A)-33, MUMBAI DISMISSED THE ASSESSEES APPEAL VIDE ORDER DT. 27/03/2012. 3. AGGRIEVED BY THE ORDER OF THE CIT(APPEALS)-33, MUMBAI DT. 27/03/2012 FOR ASST. YEAR 2005-06, THE ASSESSEE HAS PREFERRED THIS APPEAL RAISING THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED TO HOLD THAT THE REOPENING OF THE ASSESSMENT U/S. 144 BY ISSUE OF NOTICE U/S. 148 IS VALID. 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN CONFIRMING THE ADDITION OF RS. 76,056,335/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CRED IT U/S. 68 OF THE ACT AS INCOME FROM OTHER SOURCES. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN NOT ACCEPTING THE AGRICULTURAL INCOME OF RS. 40,51, 000/- AS DECLARED BY APPELLANT IN HIS RETURN OF INCOME. 3 ITA NO. 3712 /MUM/2012 ASSESSMENT YEAR: 2005-06 4. WHILE CONFIRMING THE ADDITION, LD.CIT(A) ERRED IN NOT CONSIDERING THE VARIOUS DOCUMENTARY EVIDENCES PRODUCED BEFORE H IM SUCH AS PASSPORT COPIES, BANK STATEMENTS, LOAN CONFIRMATION LETTERS. 5. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN ESTIMATING THE BUSINESS INCOME OF SMILE TOURS & TRA VELS AT RS. 2,25,000/- AS AGAINST RS. 16,781/- DECLARED IN THE RETURN OF INCOME. 6. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN ESTIMATING THE BUSINESS INCOME OF SHREE TRADING AT RS. 1,00,000/- AS AGAINST RS. 9,280/- DECLARED IN THE RETURN OF IN COME. 7. THE APPELLANT CRAVES, LEAVES TO ALTER, AMEND, WI THDRAW OR SUBSTITUTE ANY GROUND OR GROUNDS OR TO ADD ANY NEW GROUND OF APPEAL OR ALL OF THE ABOVE GROUNDS OF APPEAL, ON OR BEFORE HEARING, EACH OF WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER . 4. AS PER THE RECORD, THE ASSESSEE HAS BEEN GRANTED AT LEAST 14 OPPORTUNITIES OF BEING HEARD IN THIS APPEAL. EITHER NONE APPEARED ON BEHALF OF THE ASSESSEE OR ADJOURNMENT HAS BEEN SOUGHT. VIDE LETTER DT. 24/08/ 2015 THE AR FOR THE ASSESSEE SUBMITTED THAT SINCE THERE HAS BEEN NO COMMUNICATIO N/INSTRUCTIONS FROM THE ASSESSEE AND DOCUMENTS HAVE NOT BEEN GIVEN TO HIM, HE WAS WITHDRAWING FROM REPRESENTATION IN THIS CASE. EVEN THE NOTICE ISSUED SUBSEQUENTLY BY RPAD HAS BEEN RETURNED UNSERVED. TODAY, I.E. 15/02/2016 WHEN THE CASE WAS CALLED FOR HEARING, NO ONE WAS PRESENT FOR THE ASSESSEE BUT TH E LD. DR WAS PRESENT FOR REVENUE. IN THE CIRCUMSTANCES OF THE CASE AS MENTIO NED ABOVE, IT APPEARS THAT THE ASSESSEE IS NOT SERIOUS ABOUT PURSUING THIS APPEAL AND WE ARE THEREFORE DISPOSING 4 ITA NO. 3712 /MUM/2012 ASSESSMENT YEAR: 2005-06 OFF THIS APPEAL WITH THE ASSISTANCE OF LD. DR FOR R EVENUE AND MATERIAL ON RECORD HEREUNDER. 5. GROUND NO: 1 (SUPRA) APPEARS TO BE INFRUCTUOUS, AS THE ORDER OF ASSESSMENT FOR ASST. YEAR 2005-06 PASSED EX-PARTE U/S 144 OF THE A CT DOES NOT APPEAR TO HAVE BEEN RE-OPENED BY ISSUE OF NOTICE U/S 148 OF THE AC T AND NEITHER HAS SUCH A GROUND BEEN RAISED BY THE ASSESSEE AND DISMISSED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. IN THESE CIRCUMSTANCES THIS GROUND NOT EMANATING FROM ANY ADVERSE FINDING IN THE ORDERS OF THE AUTHORITIES BE LOW, IS INFRUCTUOUS AND IS ACCORDINGLY DISMISSED. 6. GROUND NO: 7 (SUPRA), BEING GENERAL IN NATURE, NO ADJUDICATION IS CALLED FOR THEREON. 7. GROUND NO. 2 & 4 CASH CREDIT U/S 68 - RS. 76,05,335/- 7.1 IN THE IMPUGNED ORDER, THE LD. CIT(A) AFTER CON SIDERING THE ASSESSING OFFICERS REMAND REPORT AND THE ASSESSEES SUBMISSIONS AT PA RAS 2.1.8 TO 2.2.8 AND CONSIDERING JUDICIAL PRONOUNCEMENTS IN THIS REGARD HAS HELD AS UNDER AT PARA 2.29:- AS DISCUSSED ABOVE THE APPELLANT HAS NOT BEEN ABLE TO SUPPORT HIS CLAIM THAT UNSECURED LOANS REFLECTED AT RS. 25,94,9 50/-TAKEN IN THE BOOKS OF M/S. SMILE TOURS & TRAVELS, THE PROPRIETAR Y CONCERN OF THE APPELLANT AND FURTHER AMOUNT OF RS. 50,10,385/- IN THE BOOKS OF M/S. SHREE TRADING COMPANY ANOTHER PROPRIETARY CONCERN O F THE APPELLANT ARE GENUINE UNSECURED LOANS AND HENCE HAVE TO BE AD DED BACK AND HENCE ADDITIONS MADE BY A.O. FOR THESE AMOUNTS U/S 68 ARE CONFIRMED. THIS GROUND IS DISMISSED. 5 ITA NO. 3712 /MUM/2012 ASSESSMENT YEAR: 2005-06 7.2 AFTER HEARING THE LD. DR FOR REVENUE IN THE MAT TER AND CAREFULLY PERUSING THE FINDINGS OF THE LD. CIT(A) IN THE IMPUGNED ORDER, W E FIND THAT THE ASSESSEE HAS BEEN UNABLE TO CONTROVERT THE FINDINGS OF THE LD. C IT(A). IN THIS VIEW OF THE MATTER, WE FIND NO REASON TO DEVIATE FROM OR INTERFERE WITH THE FINDINGS AS RECORDED BY THE LD. CIT(A) AND ACCORDINGLY CONFIRM THE SOME. CONSEQ UENTLY, GROUND NO. 2 & 4 OF THE ASSESSEES APPEAL ARE DISMISSED. 8. GROUND NO. 3 - AGRICULTURAL INCOME RS. 40,51,000/- 8.1 IN THIS GROUND, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER OF THE LD. CIT(A) IS NOT ACCEPTING HIS AGRICULTURAL INCOME AS DECLARED. IN THE IMPUGNED ORDER, AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, AND THE FINDINGS OF THE LD. CIT(A) FOR ASST. YEARS 2003-04 AND 2004-05 AT PARAS 2.15 AND 2.16, THE LD. CIT(A) AT PARA 2.17 HAS DISMISSED THE ASSESSEES GROUNDS HOLD ING AS UNDER:- 2.17 IN THE INSTANT APPEAL WHICH PERTAINS TO A.Y. 2 005-06, SINCE THERE IS NO SUBMISSION AT ALL FROM THE APPELLANTS SIDE TO PROVE THAT HE HAD AGRICULTURAL INCOME TO THE EXTENT OF RS. 40, 51,000/- FOLLOWING THE DECISION GIVEN IN EARLIER A.Y.S IN THE CASE OF APPELLANT, THE CLAIM FOR AGRICULTURAL INCOME MADE AT RS. 40,51,000/- HA VING REMAINED UNSUPPORTED HAS TO BE ADDED BACK AND HENCE ADDITION MADE FOR RS. 40,51,000/- BY THE A.O. IN THE ASSESSMENT ORDER DAT ED 20/12/2007 WHICH WAS ORIGINALLY PASSED U/S 144 NOW STANDS CONF IRMED. THIS GROUND OF APPEAL IS DISMISSED. 8.2 AFTER HEARING THE LD. DR IN THE MATTER AND CARE FULLY PERUSING THE FINDINGS OF THE LD. CIT(A) IN THE MATTER, WE FIND THAT THE ASSE SSEE HAS NOT BEEN ABLE TO PLACE ON RECORD ANY MATERIAL EVIDENCE TO CONTROVERT THE FINDINGS OF THE LD. CIT(A) IN THE IMPUGNED ORDER. IN THIS VIEW OF THE MATTER, WE FIN D NO REASONS TO INTERFERE WITH 6 ITA NO. 3712 /MUM/2012 ASSESSMENT YEAR: 2005-06 THE FINDINGS RENDERED BY THE LD. CIT(A) IN THE IMPU GNED ORDER AND THEREFORE UPHOLD THE SAME. CONSEQUENTLY, GROUND NO. 3 RAISED BY THE ASSESSEE IS DISMISSED. 9. GROUND NO. 5 AND 6. 9.1 IN THESE GROUNDS, THE ASSESSEE HAS CHALLENGED T HE ORDERS OF THE LD. CIT(A) IN ESTIMATING THE INCOME OF M/S SMILE TOURS AND TRAVEL S AT RS. 2,25,000/- AS AGAINST RS. 16,781/- DECLARED IN THE RETURN OF INCO ME AND OF M/S SHREE TRADING AT RS. 1,00,000/- AS AGAINST RS. 9,280/- DECLARED IN T HE RETURN OF INCOME FOR ASST. YEAR 2005-06. IN THIS REGARD, THE FINDING OF THE L D. CIT(A) AT PARA (C) ON PAGE 13 OF THE IMPUGNED ORDER IS AS UNDER:- (C) BUSINESS INCOME OF PROPRIETARY CONCERNS-- FURTHER THE INCOME FROM BUSINESS ESTIMATED AT RS. 2,25,000/- OF SMILE TOURS & TRAVELS AND RS. 1,00,000/- OF M/S. SHREE TRADING CO MPANY, AGAIN SINCE THE APPELLANT HAS NOT MADE ANY SUBMISSIONS IT HAS TO BE PRESUMED THAT HE HAS NOTHING TO SAY AND HENCE THESE ADDITIONS ARE ALSO U PHELD. IN VIEW OF THIS, THE APPEAL IS DISMISSED. 9.2 AFTER HEARING THE LD. DR IN THE MATTER AND CARE FULLY PERUSING THE FINDINGS OF THE LD. CIT(A) IN THE IMPUGNED ORDER, WE FIND THAT EXCEPT FOR RAISING THESE GROUNDS, THE ASSESSEE HAS FAILED TO BRING ON RECORD ANY MATERIAL EVIDENCE TO CONTROVERT THE FINDINGS RENDERED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. IN THIS VIEW OF THE MATTER, WE FIND NO REASON TO DEVIATE FR OM OR INTERFERE WITH THE FINDINGS OF THE LD. CIT(A) IN THE IMPUGNED ORDER AND THEREFO RE UPHOLD THE SAME. CONSEQUENTLY, GROUNDS NO. 5 AND 6 OF THE ASSESSEES APPEAL ARE DISMISSED. 10. IN THE RESULT, THE ASSESSEES APPEAL FOR ASST. YEAR 2005-06 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH FEBRUARY, 2016 7 ITA NO. 3712 /MUM/2012 ASSESSMENT YEAR: 2005-06 SD/- SD/- ( SANDEEP GOSAIN ) (JASON P.BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 19/02/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA