SIDDQUE AHMED ABBASALI CHODHARY, MUMBAI V. ITO WD 21(3)(2), MUMBAI

ITA 4522/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9768 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 22-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 01-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 4522/MUM/2016 ASSESSMENT YEAR: 2009 - 10 SIDDIQUE AHMED ABBASALI CHOWDHARY A - 3, YARI DSOUZA NAGAR CHS LTD., 90 FEET ROAD, SAKINAKA MUMBAI - 400072 VS. ITO - 21(3)(2) BKC MUMBAI - 400051. PAN NO. A NLPK3359AA APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MR. M.C. OMI NINGSHEN, DR DATE OF HEARING : 22/06/2017 DATE OF PRONOUNCEMENT : 19/09/2017 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2009 - 10 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 38 , MUMBAI AND ARISES OUT OF THE PENALTY ORDER U/S 271(1)(C) OF THE INCOME TAX ACT 1961, (THE ACT). 2. WE FIND FROM THE PERUSAL OF THE RECORD THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE TO THE HEARIN G FIXED BEFORE THE TRIBUNAL ON 11.04.2017, 11.05.2017 AND 22.06.2017. AT THE THRESHOLD, IT IS RELEVANT TO MENTION THAT NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THIS APPEAL WAS CALLED FOR. WE FIND THAT PROPER NOTICE OF HEARING HAS ALREADY BEEN GIVEN TO THE ASSESSEE. UNDER THESE CIRCUMSTANCES, IN OUR ITA NO. 4522/MUM/2016 2 CONSIDERED OPINION, THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL. AS SUCH WE HOLD THAT THIS APPEAL IS LIABLE TO BE DISMISSED FOR NON - PROSECUTION. IN THIS REGARD, WE PLACE RELIANCE UPON FOLLOWING C ASE LAWS: 1. ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT 223 ITR 480 (M.P.) 2. NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495 (P& H) 3. CIT VS. B. N. BHATTACHARGEE AND ANOTHER 118 ITR 461(SC) 3. ON MERIT, WE FIND THAT THE ASSESSING OFFICER (AO) MADE ADDITIONS ON ACCOUNT OF (I) CASH DEPOSITS OF RS.17,42,503/ - , (II)AD - HOC DISALLOWANCE OF EXPENSES OF RS.7,65,617/ - AND (III) DEPRECIATION OF RS.47,704/ - . IN APPEAL, THE LD. CIT(A) CONFIRMED THE QUANTUM ADDITION ON CASH DEPOSIT TO THE EXTENT OF RS.11,99,360/ - AFTER GIVING THE BENEFIT OF CASH AGAINST CASH SALES TO THE EXTENT OF RS.5,57,743/ - . FURTHER, THE LD. CIT(A) REDUCED THE AD - HOC DISALLOWANCE OF RS.7,65,617/ - MADE BY THE AO TO RS.44,485/ - . HE DELETED THE DISALLOWANCE OF DEPRECIATION OF RS.47,704/ - . 3.1 THEN THE AO LEVIED MINIMUM PENALTY OF RS.3,97,699/ - U/S 271(1)(C) OF THE ACT. IN APPEAL, THE LD. CIT(A) CONFIRMED THE PENALTY IMPOSED BY THE AO ON UNEXPLAINED CASH DEPOSIT AMOUNTING TO RS.11,99,360/ - . 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE ARE OF THE CONSIDERED VIEW THAT PENALTY U/S 271(1)(C) IS LEVIABLE ON THE CASH DEPOSIT OF RS.11,99,360/ - . IN UNION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSORS (2008) 306 ITR 277 (SC ), THE HONBLE SUPREME COURT HAS HELD THAT THE EXPLANATIONS APPENDED TO SECTION 271(1)(C) INDICATE THE ELEMENT OF STRICT LIABILITY ON THE ASSESSEE FOR ITA NO. 4522/MUM/2016 3 CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WHILE FILING THE RETURN. THE OBJECT BEHIND THE ENACTMENT OF SECTION 271(1)(C) READ WITH THE EXPLANATIONS INDICATES THAT THE SECTION HAS BEEN ENACTED TOPROVIDE FOR A REMEDY FOR LOSS OF REVENUE. THE PENALTY UNDER THAT PROVISION IS A CIVIL LIABILITY. THE ABOVE PRINCIPLE OF LAW HAS BEEN REITERATED IN MAK DATA P. LTD. VS. CIT (2013) 358 ITR 593 (SC), AFFIRMING CIT VS. MAK DATA LTD . (2013) 352 ITR 1 (DEL). WE FOLLOW THE RATIO LAID DOWN IN THE ABOVE DECISIONS AND UPHOLD THE ORDER OF THE LD. CIT(A). 4. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/09/2017. SD/ - SD/ - ( SAKTIJIT DEY ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 19/09/2017 RAHUL SHARMA, SR. P.S. 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