GARRISON PHARMA (INDIA) LTD, MUMBAI V. ITO 5(1)(2), MUMBAI

ITA 4041/MUM/2015

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2158 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Corroborative evidences; Non compliance
• Section: 271(1)(c); 142(1); 274; 143(2); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 4041 /MUM. /201 5 ( ASSESSMENT YEAR : 20 09 10 ) M/S. GARRISON PHARMA (INDIA) LTD. DINESH B. SHAH, 7A, 601, PATEL APARTMENTS, B.G. KHER MARG CPA COMPOUND, WORLI NAKA MUMBAI 400 018 PAN AAACG0568N . APPELLANT V/S INCOME TAX OFFICER WARD 5(1)(2), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS. SHREEKALA PARDESHI DATE OF HEARING 19.11.2020 DATE OF ORDER 27.11.2020 O R D E R PER SAKTIJIT DEY. J.M. TH E AFORESAID APPEAL HAS BEEN FILED BY T H E ASSESSEE CHALLENGING THE ORDER DATED 2 ND MARCH 2015 , PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 10 , MUMBAI, F O R THE ASSESSMENT YEAR 20 09 10 . 2. WHEN THE APPEAL W AS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THERE IS NO APPLICATION 2 M/S. GARRISON PHARMA (INDIA) LTD. SEEKING ADJOURNMENT EITHER. CONSIDERING THE NATURE OF DISPUTE, WE PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. BRIEF FACTS ARE, THE ASSESSEE , A RESIDENT COMPANY , IS ENGAGED IN THE BUSINESS OF TRADING IN PHARMACEUTICAL S. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 29 TH SEPTEMBER 2009, DECLARING TOTAL INCOME OF ` 12,67,506. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY. AS STATED BY THE ASSESSING OFFICER IN THE A SSESSMENT ORDER, IN RESPONSE TO THE NOTICE S ISSUED UNDER SECTION 142(1) AND 143(2) OF THE ACT, NO COMPLIANCE WAS MADE. SUBSEQUENTLY, IN RESPONSE TO ANOTHER NOTICE ISSUED UNDER SECTION 142(1), THE ASSESSEE WITHOUT APPEARING SENT A LETTER RAISING SOME GENERA L OBJECTIONS. DUE TO NON COMPLIANCE OF THE ASSESSEE, THE ASSESSING OFFICER PROCEEDED TO INVOKE THE PROVISIONS OF SECTION 144 OF THE ACT AND COMPLETE D THE ASSESSMENT TO THE BEST OF HIS JUDGMENT. WHILE DOING SO, HE ADDED BACK AN AMOUNT OF ` 80 LAKH, AS UNEXP LAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. ON THE BASIS OF SUCH ADDITION MADE IN THE ASSESSMENT ORDER AND CONFIRMED IN APPEAL, THE ASSESSING OFFICER PROCEEDED TO INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ALLEGI NG CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME. AS ALLEGED BY 3 M/S. GARRISON PHARMA (INDIA) LTD. THE ASSESSING OFFICER, IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 271(1)(C) R/W SECTION 274 OF THE ACT, NEITHER THE ASSESSEE FILED ANY EXPLANATION NOR HE APPEARED BEFORE THE ASSESSING OFFICER DURING THE PENALTY PROCEEDINGS. THEREFORE, THE ASSESSING OFFICER PROCEEDED TO PASS AN ORDER IMPOSING PENALTY OF ` 24,72,000, UNDER SECTION 271(1)(C). AGAINST THE PENALTY ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, SINCE , THE ASSESSEE DID NOT APPEAR BEFORE LEARNED COMMISSIONER (APPEALS), HE PROCEEDED TO DISPOSE OFF THE APPEAL EX PARTE SUSTAINING PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. 4. WE HAVE CAREFULLY CONSI DERED THE SUBMISSIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL PLACED ON RECORD. IT IS EVIDENT FROM THE FACTUAL MATRIX , IN THE C OURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE DID NOT COMPLY WITH ANY OF THE STATUTORY NOTICE S ISSUED BY T HE ASSESSING OFFICER UNDER SECTION 142(1) AND 143(2) OF THE ACT TO EXPLAIN THE GENUINENESS OF THE INCREASE IN SHARE PREMIUM. DUE TO THIS REASON, THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 144 OF THE ACT BY ADDING BACK THE AMOU NT OF ` 80 LAKH UNDER SECTION 68 OF THE ACT IN THE ABSENCE OF ANY EXPLANATION OR SUPPORTING EVIDENCE PRODUCED BY THE ASSESSEE. IT APPEARS FROM RECORD , AGAINST THE ADDITION SO MADE THE ASSESSEE PREFERRED APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) AND 4 M/S. GARRISON PHARMA (INDIA) LTD. THER EAFTER BEFORE THE TRIBUNAL. SINCE BEFORE THE TRIBUNAL ALSO, THE ASSESSEE DID NOT APPEAR , VIDE ORDER DATED 27 TH APRIL 2015, IN ITA NO.7162/MUM./2012, THE TRIBUNAL CONFIRMED THE ADDITION OF ` 80 LAKH. IT IS EVIDENT , ON THE BASIS OF THE AFORESAID ADDITION THE ASSESSING OFFICER HAD INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ALLEGING CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. HOWEVER, THE ASSESSEE NEITHER FURNISHED ANY EXPLANATION IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 271(1)(C) R/W SECTION 274 OF THE ACT NOR APPEARED BEFORE THE ASSESSING OFFICER TO SHOW THAT NO PENALTY IS IMPOSABLE. BEFORE LEARNED COMMISSIONER (APPEALS) WHEN THE APPEAL CHALLENGING THE LEVY OF PENALTY WAS FIXED NO ONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SEVERAL OPPORTUNITIES . EVEN BEFORE US ALSO, NO ONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. 5. THUS, FROM T HE AFORESAID NARRATION OF FACTS IT IS VERY MUCH CLEAR THAT NEITHER IN THE QUANTUM PROCEEDINGS NOR IN THE PENALTY PROCEEDINGS, RIGHT FROM THE STAGE OF ASSESSING OFFICER TILL THE TRIBUNAL, THE ASSESSEE HAS NOT FURNISHED ANY EXPLANATION OR SUPPORTING EVIDENCE EITHER TO CONTEST THE AD DITION MADE UNDER SECTION 68 OF THE ACT ON MERIT S OR TO PROVE THE FACT THAT THERE IS NEITHER ANY CONCEALMENT OF INCOME NOR FURNISHING PARTICULARS OF INACCURATE INCO ME. ON THE CONTRARY, THE FACTS ON RECORD CLEARLY REVEAL THE CASUAL AND NON 5 M/S. GARRISON PHARMA (INDIA) LTD. COOPERATIVE ATTIT UDE OF THE ASSESSEE TOWARDS THE TAX PROCEEDINGS. THUS, WHEN THE ASSESSEE HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THE GENUINENESS OF THE SHARE PREMIUM AND HAS ALSO MISERABLY FAILED TO ESTABLISH ON RECORD THAT THERE IS NEITHER ANY CONCEALMENT OR FURN ISHING OF INACCURATE PARTICULARS OF INCOME, IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, IN OUR VIEW, IS JUSTIFIED. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS). GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 6. IN THE RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.11.2020 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 27.11.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI