BHALCHANDRA A. RAKVI (HUF), DAHISAR V. ITO - 20(1)(2), MUMBAI

ITA 5584/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4784 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 03-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I G. MANJUNATH A , ACCOUNTANT MEMBER ITA NO. 5584 / MUM . /201 8 ( ASSESSMENT YEAR : 20 02 03 ) ITA NO. 5585 /MUM. /2018 ( ASSESSMENT YEAR : 200 4 05 ) ITA NO. 5586 /MUM. /2018 ( ASSESSMENT YEAR : 200 4 05 ) BHALCHANDRA A. RAKVI (HUF) FLAT NO.704, NISARG CHS LTD. DAHISAR (WEST), S.M. ROAD MUMBAI 400 068 PAN AADHB9229D . APPELLANT V/S INCOME TAX OFFICER WARD 20(1)(2), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : S HRI ASHISH KUMAR DATE OF HEARING 29.01.2020 DATE OF ORDER 21.02.2020 O R D E R PER SAKTIJIT DEY. J.M. THE CAPTIONED APPEAL S BY THE ASSESSEE ARISE OUT OF THREE SEPARATE ORDERS , ALL DATED 16 TH APRIL 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 36, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR S 2002 03 AND 2004 05. 2 BHALCHANDRA A. RAKVI (HUF) 2. WHEN THE APPEALS WERE CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THERE IS NO APPLICATION SEEKING ADJO URNMENT EITHER. AS SEEN FROM RECORD, ON THE EARLIER OCCASION I.E., 9 TH DECEMBER 2019, WHEN THE APPEALS WERE FIXED FOR HEARING, NO ONE HAD APPEARED ON BEHALF OF THE ASSESSEE. THUS, FROM THE AFORESAID FACTS, IT IS VERY MUCH CLE AR THAT THE ASSESSEE IS NEITHER DILIGENT NOR INTERESTED IN PURSUING THE APPEALS. ACCORDINGLY, 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 REC ORD. ITA NO.5584/MUM./2018 ASSESSMENT YEAR 2002 03 3. AS COULD BE SEEN FROM THE GROUNDS RAISED , THEY ARE ON THE VALIDITY OF RE OPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 4. BRIEF FACTS OF THE CASE ARE, THE ASSESSEE IS A HINDU UNDIVIDED FAMILY (HUF). FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 14 TH MAY 2004, DECLARING TOTAL INCOME OF ` 1,17,722, EXCLUDING THE AGRICULTURAL INCOME OF ` 30,618. THE ASSESSMENT IN CASE OF THE ASSESSEE WAS RE OPENED UNDER SECTION 147 OF THE ACT, HOWEVER, THE ASSESSING OFFICER ULTIMATELY COMPLETED THE 3 BHALCHANDRA A. RAKVI (HUF) ASSESSMENT UNDER SECTION 1 43(3) R/W SECTION 147, ACCEPTING THE INCOME RETURNED BY THE ASSESSEE. IN OTHER WORDS, THERE WAS NO VARIATION BETWEEN THE INCOME RETURNED BY THE ASSESSEE AND INCOME DETERMINED BY THE ASSESSING OFFICER. AGAINST THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, WHICH WAS DISMISSED. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE TH E TRIBUNAL. 5. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS COULD BE SEEN FROM THE GROUNDS RAISED, THE ASSESSEE HAS ONLY CHALLENGED THE VALIDITY OF RE O PENING OF ASSESSMENT. T HERE IS NO GROUND RAISED BY THE ASSESSEE DISPUTING ANY ISSUE ON MERITS. I N FACT, IN THE ASSESSMENT ORDER THERE IS NO ADDITION MADE BY THE ASSESSING OFFICER. THUS, THE PRESENT APPEAL IS PURELY ACADEMIC IN NATURE. BE THAT AS IT MAY, AS REGARDS THE ISSUE OF VALIDITY OF REOPENING OF A SSESSMENT, LEARNED COMMISSIONER (APPEALS) HAS OBSERVED THAT AT THE TIME OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD NEITHER ASKED FOR THE REASONS RECORDED NOR HAS RAISED ANY OBJECTIONS AGAINST THE RE OPENING OF ASSESSMENT U/ S 147 OF THE ACT. THE ASSESSEE H AS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS WHICH IS EVIDENT FROM THE ASSESSMENT ORDER, AS THE ASSESSING OFFICER HAS SPECIFICALLY MENTIONED THAT IN RESPONSE TO THE NOTICES ISSUED, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAD ATTENDED FROM 4 BHALCHANDRA A. RAKVI (HUF) TI ME TO TIME AND FILED THE DETAILS CALLED FOR. ULTIMATELY, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT ACCEPTING THE RETURNED INCOME. WHEN THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND HAS MADE COMPLIANCE FROM TIME TO TIME, IT HAS TO BE PRESUMED THAT THE ASSESSEE MUST BE AWARE OF THE REASONS FOR RE OPENING OF ASSESSMENT. HENCE, NEITHER IT ASKED FOR SUPPLY OF REASONS NOR OBJECTED TO THE RE ASSESSMENT PROCEEDINGS. ULTIMATELY, NO PREJUDICE HAS BEEN CAUSED TO THE ASSESSEE , SINCE, WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER HAS NOT MADE ANY ADDITION WHATSOEVER. THEREFORE, WE FAIL TO UNDERSTAND THE GRIEVANCE OF THE ASSESSEE IN PREFERRING THE PRESENT APPEAL. IN ANY CASE OF THE MAT TER, THE FINDING RECORDED BY LEARNED COMMISS IONER (APPEALS) HAS REMAINED UNCONTROVERTED BEFORE US. FOR THE AFORESAID REASONS, WE UPHOLD THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) BY DISMISSING THE GROUND RAISED. 6. IN THE RESULT, APPEAL STANDS DISMISSED. ITA NO. 5586 /MUM./2018 ASSESSMENT Y EAR : 2004 05 7. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE RAISED IN ITA NO.5584/MUM./2018. FOLLOWING OUR DECISION IN THE SAID APPEAL , AS AFORESAID, WE UPHOLD THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS). GROUND RAISED IS DIS MISSED. 5 BHALCHANDRA A. RAKVI (HUF) 8. IN THE RESULT, APPEAL IS DISMISSED. ITA NO. 5585 /MUM./2018 ASSESSMENT YEAR : 2004 05 9. THIS APPEAL ARISES OUT OF CONSEQUENTIAL ORDER PASSED IN PU RSUANCE TO THE DIRECTIONS OF LEARNED COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE ACT. 10. THE ASSESSMENT IN ASSESSEES CASE WAS COMPLETED UNDER SECTION 143(3) R/W SECTION 147 OF THE ACT VIDE ORDER DATED 31 ST DECEMBER 2008, ACCEPTING THE RETURNED INCOME OF ` 54,965. SINCE , WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER HAD NOT ASSESSED ASSESSEES 1/5 TH SHARE OF ` 1,20,000 IN THE COMPENSATION RECEIVED FROM GAURI SHANKAR TODI, WHO HAD ENCROACHED THE LA ND HELD JOINTLY WITH OTHERS, LEARNED COMMISSIONER OF INCOME TAX INVOKED HIS POWER UNDER SECTION 263 OF THE ACT TO REVISE THE ASSESSMENT ORDER BY SET IT ASIDE TO THE ASSESSING OFFICER FOR FRESH ASSESSMENT AFTER EXAMINING THE ISSUE RELATING TO RECEIPT OF COMPENSATION. IN THE ASSESSMENT ORDER PASSED IN PURS UANCE TO THE DIRECTIONS OF LEARNED COMMISSIONER (AP PEALS), THE ASSESSING OFFICER ADDED BACK THE AMOUNT OF ` 1,20,000, TO THE INCOME OF THE ASSESSEE. AGAINST THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY ON THE GROUND THAT WHEN THE ORIGINAL ASSESSMENT ORD ER PASSED UNDER SECTION 14 3(3) R/W SECTION 147 OF THE ACT IS ITSELF INVALID, 6 BHALCHANDRA A. RAKVI (HUF) THE ASSESSMENT ORDER IN PU RSUANCE TO THE DIRECTIONS OF LEARNED COMMISSIONER OF INCOME TAX CANNOT BE VALID. OF COURSE, THE ASSESSEE ALSO CHALLENGED THE ADDITION ON MERIT. AFTER CON SIDERING THE SUBMISSIONS OF THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) FOUND THEM UN ACCEPTABLE AND ACCORDINGLY, DISMISSED THE APPEAL OF THE ASSESSEE. 11. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS REGARDS THE VALIDITY OF THE IMPUGNED ASSESSMENT ORDER, WE AGREE WITH THE LEARNED COMMISSIONER (APPEALS) THAT THERE CANNOT BE ANY QUESTION REGARDING THE VALIDITY OF THE ASSESSMENT ORDER AS THE ORIGINAL ASSESSMENT ORDER HAS ALREADY BEEN HELD AS VALID. AS REG ARDS THE MERITS OF THE ISSUE , FROM THE FACTS ON RECORD IT IS EVIDENT THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE ALONG WITH OTHER CO OWNERS HAD RECEIV ED COMPENSATION FROM THE PERSON WHO HAD ENCROACHED THEIR LAND. IN CASE OF OTHER CO OWNERS ALSO SIMILAR ADDIT ION WAS MADE. AS OBSERVED BY LEARNED COMMISSIONER (APPEALS) , IN RESPECT OF ONE OF THE CO OWNERS, THE ADDITION MADE BY THE ASSESSING OFFICER WAS ALSO CONFIRMED BY THE FIRST APPELLATE AUTHORITY . THE AFORESAID FINDING OF LEARNED COMMISSIONER (APP EALS) HAS NOT BEEN CONTROVERTED BY THE ASSESSEE. IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS). ACCORDINGLY, GROUNDS ARE DISMISSED. 7 BHALCHANDRA A. RAKVI (HUF) 12. IN THE RESULT, APPEAL STANDS DISMISSED. 13. TO SUM UP, ALL THE APPE ALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 21.02.2020 SD/ - G. MANJUNATH A ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMB AI, DATED: 21.02.2020 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