FACT BIODIESEL LTD, MUMBAI V. DCIT 8(1), MUMBAI

ITA 5693/MUM/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7298 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 21-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Keywords: Income from undisclosed sources; Revised return
• Section: 143(3); 133A

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH MUMB AI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.5693/MUM/2015 (ASSESSMENT YEAR 201 0-11 ) M/S FACT BIODIESEL LTD. 54, JUHU SUPREME SHOPPING CENTER, GULMOHAR CROSS ROAD NO.9 , JVPD SCHEME, ANDHERI (W), MUMBAI-49. PAN: AABCF1341B VS. DCIT 8(1) 209, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-20. APPELLANT RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SHRI R.P. MEENA (CIT-DR) DATE OF HEARING : 02.05.2018 DATE OF PRONOUNCEMEN T : 02.05.2018 ORDER PER PAWAN SINGH, JUDICIAL MEMBER; 1. THE INSTANT APPEAL BY ASSESSEE UNDER SECTION 253 OF THE INCOME-TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIO NER OF INCOME-TAX (APPEALS)-16 [LD. CIT(A)], MUMBAI DATED 10.09.2015 FOR ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROU NDS OF APPEAL: 1) (A) THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) -16, MUMBAI ERRED IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME TAX, 8(1), MUMBAI (HEREINAFTER REFERRED TO AS THE 'ASSESSING OFFICER' ) IN MAKING ADDITION OF AGRICULTURAL INCOME (WHICH WERE SHOWN IN ORIGINAL INCOME TAX RET URN FILED) OF RS. 16,99,63,308/- AS INCOME FROM UNDISCLOSED SOURCES STATING AS BOGUS AG RICULTURAL INCOME. (B) WITHOUT PREJUDICE TO WHAT HAS BEEN STATED ABOVE , THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER ERRED IN MAKING AN ADDITION OF RS . 16,99,63,308/- AS BOGUS AGRICULTURAL INCOME AS THERE WAS NO MATERIAL ON REC ORD TO PROVE THE EXISTENCE OF SUCH UNDISCLOSED INCOME IN THE HANDS OF THE APPELLANT. T HE AO SOLELY RELIED ON THE ORIGINAL INCOME TAX RETURN WHICH WAS REVISED BY THE APPELLAN T WITHIN THE STIPULATED TIME WHILE PASSING THE ORDER. (C) THE APPELLANT FURTHER SUBMITS THAT NO INCRIMINA TING MATERIAL WAS FOUND DURING THE COURSE OF SURVEY & PROCEEDINGS AND ASSESSING OFFICE R VEHEMENTLY MADE AN ADDITION WITHOUT ANY MATERIAL IN POSSESSION. (D) (I) THE APPELLANT FURTHER SUBMITS THAT THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) -16, MUMBAI & THE AO ERRED IN NOT ACCEPTI NG THE REVISED AUDITED FINANCIALS ON THE BASIS OF WHICH INCOME TAX RETURN WAS REVISED AN D SUBMITTED. ITA NO.5693/M/15- M/S FACT BIODIESEL LTD. 2 (II) THE APPELLANT ALSO SUBMITS THAT THE BASIS OF A NY SCRUTINY IS THE AUDITED FINANCIAL OF ANY PERSON OR COMPANY, IF APPLICABLE A ND NOT ACCEPTING THE AUDITED OR REVISED AUDITED FINANCIALS WITHOUT GIVING ANY REASO N TO REJECT IS AGAINST THE LAW AND SAID SCRUTINY IS LIABLE TO BE QUASHED. (E) THE APPELLANT ALSO SUBMITS THAT ANY ORDER PASSE D WITHOUT ANY MATERIAL IN POSSESSION THAT INCOME HAS ESCAPED ASSESSMENT AND J UST ON THE BASIS OF ORIGINAL INCOME TAX RETURN WHICH WAS LATER REVISED BY THE AP PELLANT WITH REVISED AUDITED FINANCIALS IS BAD IN LAW AND SHALL BE QUASHED 2) THE APPELLANT THEREFORE SUBMITS THAT ASSESSING O FFICER BE DIRECTED:- (I) TO DELETE THE ADDITION MADE IN RESPECT OF BOGUS AGRICULTURAL INCOME AMOUNTING TO RS. 16,99,63,308/- AS INCOME FROM UNDISCLOSED SO URCE. (II) PENALTY PROCEEDINGS U/S 271 (1) (C) INITIATED BY THE AO SHALL BE DROPPED. AND TO MODIFY THE ASSESSMENT AS PER PROVISIONS OF L AW. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-COMPA NY FILED ITS RETURN OF INCOME FOR RELEVANT ASSESSMENT YEAR ON 12.10.2010 D ECLARING TOTAL INCOME OF RS. NIL. THE ASSESSEE FILED REVISED RETURN OF IN COME ON 31.03.2011, FURTHER A REVISED RETURN WAS FILED ON 20.10.2011 DECLARING TOTAL INCOME AT RS. 6,700/- . THE ASSESSMENT WAS COMPLETED ON 15.03.2013 UNDER SECTION 143(3) OF THE ACT. THE ASSESSING OFFICER WHILE PASSING THE ASSESS MENT ORDER MADE THE ADDITION OF RS. 16,99,64,306/- ON ACCOUNT OF BOGUS AGRICULTURE INCOME AND RS. 3,39,74,448/- AS BOGUS AGRICULTURE EXPENSES. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSESSING OFFICER WAS CONFIRM ED. THEREFORE, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3. NONE APPEARED ON BEHALF OF ASSESSEE DESPITE SENDING A NUMBER OF NOTICES THOUGH REGISTERED POST WITH ACKNOWLEDGEMENT (RPAD). PERUSAL OF RECORD REVEALS THAT ASSESSEE HAS NEVER APPEARED. THE NOTIC E SENT THROUGH RPAD FOR THE HEARING ON 02.05.2018 RETURNED BACK WITH THE RE MARK OF POSTAL AUTHORITY LEFT. CONSIDERING THE FACT THAT ASSESSEE IS NOT A PPEARED DESPITE SENDING ITA NO.5693/M/15- M/S FACT BIODIESEL LTD. 3 NOTICES AT THE ADDRESS PROVIDED UNDER COLUMN-10 OF FORM NO.36. THEREFORE, WE LEFT NO OPTION EXCEPT TO HEAR THE SUBMISSION THE DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AND TO PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW. THE LD. D R FOR THE REVENUE SUBMITS THAT THE ASSESSEE EVEN NOT APPEARED BEFORE THE LD. CIT(A) DESPITE GRANTING A NUMBER OF OPPORTUNITY. THE ASSESSEE HAS NOT SUBSTAN TIATED ITS CLAIM EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT( A). THE ASSESSEE HAS SHOWN AGRICULTURE INCOME MERELY FOR INFLATING THE C APITAL BY WAY OF SHOWING THE BOGUS INCOME IN THE FORM OF AGRICULTURE INCOME. THE ASSESSEE HAS NO AGRICULTURE LAND FOR DOING AGRICULTURE ACTIVITIES F OR EARNING SUCH INCOME. 4. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD.THE ASSESSING OFFI CER DURING THE ASSESSMENT PROCEEDING NOTED THAT IN THE REPORT IN FORM NO. 3CD , THE ASSESSEE HAS SHOWN BUSINESS OF AGRICULTURE.THE ASSESSING OFFICER FURTH ER NOTED THAT IN THE SURVEY ACTION UNDER SECTION 133A CONDUCTED ON 01.02.2011 A T THE OFFICE PREMISES OF 54, JUHU SUPREME SHOPPING CENTRE, GULMOHAR CROSS RO AD NO.9, JUHU, MUMBAI, IT WAS FOUND THAT ASSESSEE CLAIMED AGRICULT URE INCOME PERTAINING TO THE YEAR UNDER SCRUTINY. THE SURVEY TEAM FOUND THAT THE ASSESSEE MERELY INFLATED ITSCAPITAL BY WAY OF SHOWING BOGUS INCOME IN THE FORM OF AGRICULTURE INCOME, WHICH IS CLAIMED AS EXEMPTED UNDER SECTION 10(1) AND ALSO CLAIMED BOGUS EXPENSES. FURTHER, THE ASSESSING OFFICER ON T HE BASIS OF ASSESSMENT ITA NO.5693/M/15- M/S FACT BIODIESEL LTD. 4 ORDER FOR THE YEAR 2009-10 PASSED UNDER SECTION 143 (3) OF THE ACT ON 26.11.2011 WHEREIN THE SIMILAR INCOME AS CLAIMED BU T ASSESSEE FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF ITS CLAIM OF EXE MPTION OF AGRICULTURE INCOME. AS THE ASSESSEE FAILED TO SUBSTANTIATE THE CLAIM, THE ASSESSING OFFICER ACCORDINGLY, TREATED THE GROSS RECEIPT OF R S. 16,99,63,308/- AS INCOME FROM UNDISCLOSED SOURCES AND DISALLOWED THE EXPENSE S OF RS. 3,39,74, 448/-, CLAIMED FOR EARNING SUCH INCOME. ON APPEAL BEFORE T HE LD. CIT(A), THE ASSESSEE HAS NOT PRODUCED A SINGLE EVIDENCE TO SUBS TANTIATE ITS CLAIM DESPITE SEEKING MORE THAN 10 OPPORTUNITIES. HENCE, THE APPE AL OF THE ASSESSEE WAS DISMISSED BY CONSIDERING THE MATERIAL AVAILABLE ON RECORD. BEFORE US NEITHER THE REPRESENTATIVE OF THE ASSESSEE HAS APPEARED NOR FILED ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE ITS CLAIM. HENCE, WE DO NO T FIND ANY MERIT IN THE GROUNDS OF APPEAL RAISED BY ASSESSEE. 5. IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 02.05.2018. SD/- SD/- G.S. PANNU PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 02.05.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR A BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI