TIRUPATI (MAHALAXMI) COP OP HSG SOCIETY LTD, MUMBAI V. ASST CIT 16(2, MUMBAI

ITA 5924/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9124 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2000-2001
• Appeal Filed On: 07-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGHDR
• Keywords: Opportunity of being heard; Earning of tax free income
• Section: 133A; 148

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -EBENCH MUMBAI , . . , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND C. N. PRASAD,JUDICIAL MEMBER ./I.T.A./5924/MUM/2013 , /ASSESSMENT YEAR:2000-01 M/S. TIRUPATI (MAHALAXMI) CO-OP. HSG. SOCIETY LTD.ASHISH TIRUPATI APPTS. BHULABHAI DESAI RD. MUMBAI-400 026. PAN:AAAAT 4093 R VS. ACIT -16(2) MATRU MANDIR, TARDEO MUMBAI-400 034. ( /APPELLANT) ( / RESPONDENT) / REVENUE BY: MS. ANUPAMA SINGH-DR /ASSESSEE BY: NONE / DATE OF HEARING: 16/11/2016 / DATE OF PRONOUNCEMENT: 06.01.2017 , / PER RAJENDRA A.M. - CHALLENGING THE ORDER DATED 23/07/2013 OF THE CIT ( A)-28, MUMBAI THE ASSESSEE-COOPERATIVE HOUSING SOCIETY HAS FILED THE PRESENT APPEAL. THE A SSESSEE HAD NOT FILED ANY RETURN FOR THE YEAR UNDER APPEAL. A SURVEY U/S. 133A WAS CARRIED O UT BY THE INVESTIGATION WING OF THE DEPARTMENT. THE AO ISSUED A NOTICE U/S. 148 OF THE ACT.IN RESPONSE, IT FILED THE RETURN ON 06/06/ 2007,DECLARING TOTAL LOSS OF RS. 6.87 LAKHS. THE ASSESSING OFFICER (AO) COMPLETED THE ASSESSMENT ON 03/12/2007, U/S.143(3)R.W.S.147 OF TH E ACT,ASSESSING ITS TOTAL INCOME AT RS.10, 61,000/-. HE OBSERVED THAT THE ASSESSEE HAD ADJUSTE D INCOME WHICH WAS RECEIVED DURING THE YEAR AGAIN CERTAIN EXPENSES, THAT THE ADJUSTMENTS W ERE NOT ALLOWABLE.THE AO MADE THREE ADDITIONS I.E HOARDING CHARGES(RS. 4.20 LAKHS), SAL E OF SCRAP (RS. 46, 000/-) AND SUNDRY CREDITORS NOT PAYABLE (RS.3.70 LAKHS).HE ALSO INITI ATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF TH E INCOME.THE ADDITIONS MADE BY THE AO WERE CONFIRMED BY THE FIRST APPELLATE AUTHORITY (FA A).THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND ITS APPEAL WAS PARTLY ALLOW ED. 2. DURING THE PENALTY PROCEEDINGS,THE ASSESSEE WAS GIV EN OPPORTUNITY TO FILE EXPLANATION WITH REGARD TO LEVY OF PENALTY.AS PER THE AO, THE ASSESS EE DID NOT MAKE ANY SUBMISSIONS TILL THE PASSING OF THE PENALTY ORDER. HE OBSERVED THAT IT H AD FILED RETURN OF LOSS AFTER THE SURVEY AND AFTER ISSUE OF NOTICE U/S.148 OF THE ACT,THAT IT HA D DELIBERATELY TRIED TO CONVERT ITS NON-MUTUAL INCOME HAS MUTUAL INCOME, THAT IT FURTHER TRIED TO PLAY MUTUAL EXPENSES AS DIRECTION, THAT IT 5924-TIRUPATI 2 HAD FURNISHED INACCURATE PARTICULARS OF INCOME.FINA LLY,HE LEVIED A PENALTY OF RS. 6.68 LAKHS U/S.271(1)(C) OF THE ACT. 3. IN THE APPELLATE PROCEEDINGS BEFORE THE FAA THE ASS ESSEE MADE SUBMISSIONS AND ARGUED THAT THE TRIBUNAL HAD GIVEN PARTIAL RELIEF TO THE A SSESSEE,THAT THE TRIBUNAL HAD HELD THAT HOARDING CHARGES SHOULD BE ASSESSED UNDER THE HEAD OF PROPERTY INCOME AND NOT UNDER THE HEAD INCOME FROM OTHER SOURCES, THAT THE TRIBUNAL H AD SET ASIDE THE ISSUE OF APPLYING THE PROVISIONS OF SECTION 41 (1) OF THE ACT TO THE FILE OF THE AO. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE,AS SESSMENT ORDER AND THE PENALTY ORDER, THE FAA OBSERVED THAT DURING THE APPELLATE PROCEEDINGS THE ASSESSEE HAD NOT GIVEN ANY SPECIFIC DETAIL ON THE BASIS OF WHICH IT COULD BE SAID THAT WHAT WAS MENTIONED IN THE PENALTY ORDER REGARDING OPPORTUNITY OF BEING HEARD WAS FACTUALLY INACCURATE, THAT THE TRIBUNAL HAD GIVEN PARTIAL RELIEF TO THE ASSESSEE, THAT THE ASSESSEE H AD CLAIMED INCOME FROM HOLDING CHARGES AND SALE OF SCRAP WAS EXEMPT INCOME ON THE PRINCIPLES O F MUTUALITY, THAT THE ASSESSEE HAD NOT ESTABLISHED THAT THE CLAIM MADE BY IT WAS BONA FIDE ,THAT IT HAD NOT FILED ANY RETURN OF INCOME,THAT IT WAS ONLY AFTER A SURVEY WAS CONDUCTE D AND NOTICE U/S. 148 WAS ISSUED THAT THE ASSESSEE FILED ITS RETURN, THAT IT MADE UNSUSTAINAB LE CLAIMS.HE DIRECTED THE AO TO RE-COMPUTE THE PENALTY IN THE LIGHT OF THE DIRECTIONS OF THE T RIBUNAL. 4. BEFORE US,NONE APPEARED ON BEHALF OF THE ASSESSEE A ND APPLICATION FOR ADJOURNING THE MATTER WAS ALSO NOT FILED. CONSIDERING THESE FACTS WE ARE DECIDING THE APPEAL ON THE BASIS OF AVAILABLE MATERIAL AND AFTER HEARING THE LD. DR .AS NOTHING HAS BEEN BROUGHT ON RECORD TO PROVE THAT ORDER OF THE FAA SUFFERED FROM ANY LEGAL OR FACTUAL INFIRMITY,SO,CONFIRMING THE SAME,WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAIN ST THE ASSESSEE. AS A RESULT,APPEAL FIL ED BY THE ASSESSEE STANDS DISMISSED. ! '# $%& '( . ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JANUARY, 2017. , 2017 SD/- SD/- ( . . / C. N. PRASAD ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06 .01.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5924-TIRUPATI 3 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.