HANSA P. PATEL, MUMBAI V. ACIT 24(1), MUMBAI

ITA 4222/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3114 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 20-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 12-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR SUMAN RATNAM DARSI
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE S/SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER / I .T.A. NO.4222/MUM/2014 ( / ASSESSMENT YEAR: 2007-08) SMT. HANSA P. PATEL 402, CHANDRARAJ APARTMENTS, CHINCHOLI BUNDER ROAD, MALAD (W), MUMBAI - 400064 / VS. THE ASSISTANT COMMISSIONER OF INCOME TAX 24 (1 ) BKC, BANDRA(EAST) MUMBAI ./ ./ PAN/GIR NO. : AGTPP1017F ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: NONE DEPARTMENT BY: DR. SUMAN RATNAM DARSI / DATE OF HEARING: 20.06.2016 /DATE OF PRONOUNCEMENT: 22.09.2016 ! / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 26.03.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-34, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RE LEVANT TO THE A.Y.2007-08. 2. THE APPELLANT HAS RAISED THE FOLLOWING GROUNDS:- I ) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE GROUND O F APPEAL AS UNFRACTUOUS THOUGH THE GROUND RAISED THE FACT TH AT THE ITA NO.4222/MUM/2014 ASSESSMENT YEAR: 2007-08 2 APPELLANT WAS NOT IN RECEIPT OF ORDER U/S.263 OF TH E INCOME TAX ACT 1961 AND THAT THE ASSESSING OFFICER FAILED TO PROVIDE A COPY OF THE ORDER U/S.263 OF THE APPELLANT. II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE U/S.40A(3) OF THE INCOME TAX ACT 1961 OF RS.3,19,00 0/- REJECTING THE APPELLANTS SUBMISSION THAT NONE OF T HE PAYMENTS OF MORE THAN RS.20,000/- WERE MADE ON ANY ONE DAY I N THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR 200 7-08. III) ON THE FACT AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE OF RS.25,01,263/- ON ALLEGED GROUND THAT NO TAX WAS DE DUCTED AT SOURCE FROM THE SAID AMOUNT IGNORING THE FACT THAT THE SAID AMOUNT OF RS.25,01,263/- WAS BROUGHT FORWARD FROM T HE PREVIOUS ASSESSMENT YEAR AND NOT INCURRED IN THE AC COUNTING YEAR AND NOT INCURRED IN THE ACCOUNTING YEAR RELEVA NT TO THE ASSESSMENT YEAR UNDER APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED THE RETURN OF INCOME DECLARING TOTAL INCOME TO THE TUNE OF RS.30, 14,877/-. THE ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) WAS COMPLETED ON 16.12.2009 ASSESSING THE TOTAL INC OME TO THE TUNE OF RS.33,48,211/-. THE CASE WAS SET-ASIDE U/S.263 BY HONBLE CIT 24 VIDE ORDER NO.CIT-24/1151 DATED 17.11.2011. NOTICES U/S .143(3) /142(1) OF THE ACT DATED 23.02.2012 WERE ISSUED AND SERVED UP ON THE ASSESSEE. FURTHER NOTICE U/S.142(1) ALONG WITH QUESTIONNAIRES DATED 10.10.2012 AND 19.10.2012 WERE ISSUED AND SERVED UPON ASSESSEE . THE ASSESSEE PAID AN AMOUNT OF RS.15,99,402/- IN CASH IN INSTALM ENTS EXCEEDING OF RS.20,000/- EACH. THEREFORE 20% OF THE SAID AMOUNT , I.E., TO THE TUNE OF RS.3,19,000/-, WAS DISALLOWED U/S.40A(3) OF THE ACT . THE ASSESSEE ALSO MADE PAYMENT TO THE TUNE OF RS.46,36,516/-TO M/S. S . R. TRANSPORT AND DEDUCTED THE TDS ON RS.21,35,253/-, THEREFORE, THE BALANCE AMOUNT TO ITA NO.4222/MUM/2014 ASSESSMENT YEAR: 2007-08 3 THE TUNE OF RS.25,01,262/-, UPON WHICH THE TDS WAS NOT DEDUCTED, WAS DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE U/S.40(A)(IA) OF THE ACT. FEELING AGGRIEVED, THE ASSESSEE FILED AN APPE AL BEFORE THE CIT(A) WHO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1:- 4. GROUND NO.1 REQUIRES NO ADJUDICATION AS THE HON BLE CIT 24 VIDE ORDER NO.CIT-24/1151 DATED 17.11.2011 HAS SET ASIDE THE ORDER U/S.263 OF THE ACT. DELAYED RECEIPT OF SECTION 263 ORDER, A SSUMING SO, SHALL NOT ENTITLE THE ASSESSEE TO QUESTION THE VALIDITY OF TH E PROCEEDING PURSUANT THERETO, WHICH THE AO IS IN FACT OBLIGED TO UNDERTA KE. ISSUE NO.2:- 5. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF DISALLOWANCE TO THE TUNE OF RS.3,19,000/- U/S.40A(3 ) OF THE ACT. BEFORE DISCUSSING FURTHER IT IS NECESSARY TO ADVERT THE FI NDING OF THE CIT(A) ON RECORD. 4.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AND THE IMPUGNED ASSESSMENT ORDER ON THIS ISSUE. I DO NOT FIND ANY FORCE IN THE ARGUMENTS OF THE APPELLANT MA DE IN THE STATEMENT OF FACTS. THE ASSESSING OFFICER IN THE A SSESSMENT ORDER HAS STATED THAT THE CASH BOOK FURNISHED AT TH E TIME OF ASSESSMENT PROCEEDINGS CLEARLY SHOWS THAT THE EXPEN SES MADE WERE MORE THAN RS.20,000/- UNDER VARIOUS HEADS . DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AP PELLANT ITA NO.4222/MUM/2014 ASSESSMENT YEAR: 2007-08 4 HAS NOT FILED ANY EVIDENCE TO SUBSTANTIATE HIS CLAI M THAT THE AMOUNT PAID TO VARIOUS PARTIES ARE BELOW RS.20,000/ - WHICH ARE NOT ATTRACTING PROVISION OF SECTION 40A(3). IN VIEW OF THIS, THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. 6. THE ASSESSEE FAILED TO APPEAR BEFORE US DESPITE SERVICE. THE ASSESSING OFFICER HAS ARRIVED AT THIS CONCLUSION ON SEEING THE RELEVANT ACCOUNTS AND LEDGER BOOK, IT WAS FOUND THAT THE ASS ESSEE MADE THE PAYMENT IN CASH EXCEEDING OF RS.20,000/- AGGREGATIN G TO RS.15,99,402/- THEREFORE, THE ASSESSING OFFICER APPLIED THE PROVIS ION U/S.40A(3) OF THE ACT AND DISALLOWED THE 20% OF THE AMOUNT OF RS.15,9 9,402/- I.E., TO THE TUNE OF RS.3,19,000/-. THE ASSESSEE NOWHERE PRODUC E ANY EVIDENCE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A). NOR ANY KIND OF EVIDENCE PRODUCED BEFORE US. THERE IS NO C OGENT AND CONVINCING MATERIAL ARE ON RECORD WHEREBY IT CAN BE INFERRED T HAT THE FINDING CONFIRMED BY THE CIT(A) IS CONTRARY TO THE LAW AND FACTS. EVEN THE ASSESSEE OR HIS REPRESENTATIVE FAILED TO APPEAR BEF ORE US DESPITE PROPER SERVICE ON RECORD. THEREFORE IN VIEW OF THE SAID C IRCUMSTANCES WE ARE OF THE VIEW THAT THE CIT(A) HAS PASSED THE ORDER JUDIC IOUSLY AND CORRECTLY WHICH DOES NOT REQUIRE TO INTERFERE WITH AT THIS AP PELLATE STAGE. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. ISSUE NO.3:- 7. ISSUE NO.3 IS IN CONNECTION WITH THE CONFIRMATIO N OF THE DISALLOWANCE OF RS.25,01,263/- ON THE GROUND OF THA T NO TAX WAS ITA NO.4222/MUM/2014 ASSESSMENT YEAR: 2007-08 5 DEDUCTED ON THE SAID AMOUNT. THE APPELLANT HAS PAI D AN AMOUNT OF RS.46,36,516/- TO M/S. S.R.TRANSPORT AND HAS DEDUCT ED TDS ONLY ON THE AMOUNT OF RS.21,35,253/- AND THE BALANCE AMOUNT TO THE TUNE OF RS.25,01,263/- NO TDS WAS DEDUCTED. THUS THE ASSES SING OFFICER APPLIED THE PROVISION OF SECTION 40(A)(IA) OF THE A CT. NO EVIDENCE OF ANY KIND WAS PRODUCED BEFORE THE ASSESSING OFFICER NOR PRODUCED BEFORE THE CIT(A) EVEN BEFORE US CONTRARY TO THE FI NDING OF CIT(A) IN QUESTION. THE ASSESSEE DID NOT APPEARED DESPITE SE RVICE OF NOTICE. SINCE THERE IS NO IOTA OF EVIDENCE ON RECORD IN CONNECTIO N OF THE DEDUCTION OF TDS ON ACCOUNT OF RS.25,01,263/-. THEREFORE, IN TH E SAID CIRCUMSTANCES THE ASSESSING OFFICER HAS RIGHTLY APPLIED THE PROVI SION U/S.40(A)(IA) OF THE ACT AND THE SAID AMOUNT WAS DISALLOWED IN ASSES SING THE INCOME OF THE ASSESSEE. THE CIT(A) HAS ALSO CONFIRMED ON ACC OUNT OF NON- SUBMISSION OF ANY EVIDENCE IN SUPPORT OF THE CLAIM RAISED BY THE ASSESSEE. NOTHING WAS PRODUCED BEFORE US OR ON THE FILE. THEREFORE, IN THE SAID CIRCUMSTANCES WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHTLY PASSED THE ORDER IN QUESTION WHICH DOES NOT REQUIRE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2016 SD/- SD/- (SANJAY ARORA) (AMARJIT SINGH) / ACCOUNTANT MEMBER #$ /JUDICIAL MEMBER % & MUMBAI; ' DATED : 22 ND SEPTEMBER, 2016 MP MP MP MP ITA NO.4222/MUM/2014 ASSESSMENT YEAR: 2007-08 6 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ( ) / THE CIT(A)- 4. ( / CIT 5. )*+ $$,- , ,- , % & / DR, ITAT, MUMBAI 6. +./ 0 / GUARD FILE. / BY ORDER, ) $ //TRUE COPY// / ! ' (DY./ASSTT. REGISTRAR) # $ , % & / ITAT, MUMBAI