FAIRDEAL EXPORTP. LTD, MUMBAI V. ITO WD 9(1)4, MUMBAI

ITA 6159/MUM/2012

• Counselvise Citation: 615919914 RSA 2012
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 01-07-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVINDRA SINDHU
• Keywords: Corroborative evidences; Non compliance

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - F BENCH. . , !'# !$%&' , %! () BEFORE S/SH.D.MANMOHAN,VIC E-PRESIDENT & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.6159/MUM/2012, ! ! ! ! * * * * / ASSESSMENT YEAR-2008-09 FAIRDEAL EXPORT PRIVATE LIMITED 7 KASHI KUNJ,WATERFIELD ROAD, BANDRA(WEST),MUMBAI-50 V/S. I T O 9(1)(4) AAYKAR BHAVAN, M K ROAD,MUMBAI-20 AAACF4007D ( !+, / APPELLANT) ( -.+, / RESPONDENT) !$) / 0 % / REVENUE BY : SHRI RAVINDRA SINDHU !12 !12 !12 !12 0 0 0 0 % %% % / ASSESSEE BY : NONE ! ! ! ! / // / 2! 2! 2! 2! / DATE OF HEARING : 01.07-2014 3* ! / 2! / DATE OF PRONOUNCEMENT : 01.07-2014 , 1961 / // / !! !! !! !! 254 )1( % %% % &242 &242 &242 &242 (%5 (%5 (%5 (%5 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM %! %! %! %! () () () () !$%&' !$%&' !$%&' !$%&' % %% % ! ! ! ! : CHALLENGING THE ORDERS DATED 02.07.2012 OF THE CIT( A)-19,MUMBAI ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: (1)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT (A) ERRED IN CONSIDERING THE JUSTIFICATION FOR REASON WHICH WAS BEYOND THE CONTROL OF APPELLANT FOR NOT APPEARING IN THE REMAND PROCEEDINGS INITIATED BY TH E INCOME TAX OFFICER. (2)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT (A) ERRED IN NOT VERIFYING THE DOCUMENTS WHICH PLACED AT THE TIME OF PROCEEDINGS AND THERE BY REJECTING AS THE ORIGINAL OF THE SAME NOT FURNISHED FOR VERIFICATION , WHERE NOT DEMANDED AT ALL DURING THE ENTIRE PROCEEDINGS., EVEN THOUGH THE DOCUMENTS SUBMITTED B Y APPELLANT ARE SELF-EXPLANATORY. (3)YOUR APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE GROUND AS MAY BE ADVISED 2. ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF DISTRIB UTION AND EXPORT OF INDIAN MOTION FILMS, FILED ITS RETURN OF INCOME ON 24.09.2008 DECLARING LOSS OF RS.1,16,547/-.ASSESSING OFFICER (AO) FINALISED THE ASSESSMENT U/S.143(3) OF THE ACT,ON 20.12.2010,DETERMINING THE TOTAL INCOME AT RS. NIL AFTER ALLOWING CARRYING FORWARD OF LOSS OF EARL IER YEAR OF RS.6.51 LAKHS. EFFECTIVE GROUND OF APPEAL PERTAINS TO DISMISSAL OF APPEAL FILED BY THE ASSESSEE.DURING THE ASSESSMENT PROCEEDINGS AO ISSUED NOTICES U/S.143(2) /142(1)OF THE ACT,BUT THE ASSESSEE DID NOT COMPLY.AS PER THE AO THE ASSESSEE HAD FILED PART IN FORMATION ONLY ONCE.HE FOUND THAT THE ASSESSEE HAD SHOWN RECEIPT ON ACCOUNT OF SALES AT R S.1.36 LAKHS AND I T REFUND OF RS.5.15 LAKHS. HE ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE AND A SKED IT AS TO WHY THE TOTAL RECEIPTS SHOWN IN THE P & L ACCOUNT SHOULD NOT BE TAXED AS INCOME FRO M OTHER SOURCES AND EXPENSES CLAIMED AGAINST IT SHOULD NOT BE DISALLOWED.THE ASSESSEE DI D NOT FILE ANY REPLY TO THE NOTICE.AO FINALISED ITA/6159/FAIRDEAL THE ASSESSMENT ON THE BASIS OF AVAILABLE MATERIAL 2.1. AGAINST THE ORDER OF THE AO ASSESSEE PREFERRED AN A PPEAL BEFORE THE FIRST APPEAL AUTHORITY (FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSE SSEE AND THE ASSESSMENT ORDER SHE HELD THAT DUE TO NON COMPLIANCE BY THE ASSESSEE THE AO HAD PA SSED ORDER AS PER MATERIAL AVAILABLE OR RECORD.BEFORE THE FAA THE ASSESSEE SOUGHT NUMBER OF ADJOURNMENTS.THE ASSESSEE FILED SOME DETAILS BEFORE THE FAA,THAT WERE FORWARDED BY HER T O THE AO FOR OFFERING HIS COMMENTS.AFTER RECEIVING A REMAND REPORT,FAA SENT IT TO THE ASSESS EE FOR ITS COMMENTS.THE ASSESSEE FILED ITS REPLY.TAKING IN TO CONSIDERATION OF ALL THE FACTORS ,FAA HELD THAT IT HAD NOT PROVED INCURRING OF EXPENDITURE FOR BUSINESS PURPOSES,THAT NO SUPPORTIN G EVIDENCE WAS PRODUCE BY IT,THAT THE ONUS WAS ON THE ASSESSEE TO SUPPORT ITS CLAIM, THAT,CONF IRMATION FILED BY THE ASSESSEE WAS NEITHER SIGNED BY THE ASSESSEE OR BY THE AR,THAT THE ORIGIN AL WAS ALSO NOT FURNISHED FOR VERIFICATION, THAT NONE OF THE DOCUMENTS FILED BY THE ASSESSEE WERE SI GNED BY THE ASSESSEE, THAT GENUINENESS OF THOSE DOCUMENTS COULD NOT BE EXAMINED,THAT BENEFIT OF THE PROVISIONS OF RULE 46A WAS AVAILABLE TO THE ASSESSEE WHO WERE VIGILANT,THAT ENOUGH OPPOR TUNITY WAS GIVEN TO IT FOR SUPPORTING ITS CLAIM.FINALLY,FAA CONFIRMED THE ORDER OF THE AO. 2.2. BEFORE US,NO ONE APPEARED ON BEHALF OF THE ASSESSEE NOR WAS ANY APPLICATION FILED FOR ADJOURNING THE MATTER.IT IS FOUND THAT HEARING NOTI CE WAS SENT AT THE POSTAL ADDRESS GIVEN BY THE ASSESSEE IN THE FORM NO.36 AND SAME HAS BEEN RECEIV ED BACK WITH THE REMARKS UNCLAIMED MADE BY THE POSTAL AUTHORITIES.DEPARTMENTAL REPRESE NTATIVE(DR)SUPPORTED THE ORDER OF THE FAA. 2.3. WE HAVE PERUSED THE MATERIAL BEFORE US.UNDISPUTED F ACTS OF THE CASE ARE THAT THE ASSESSEE DID NOT APPEAR BEFORE THE AO THOUGH HE HAD AFFORDED IT MANY AN OPPORTUNITIES TO PRESENT ITS CASE,THAT IT HAD FILED DETAILS ONCE I.E. ONLY ON 21.01.2010,T HAT THE DETAILS WERE NOT EXPLAINED BY IT NOR ANY SUPPORTING EVIDENCES WERE PRODUCED,THAT AO HAD PAS SED ORDER ON THE BASIS OF THE AVAILABLE MATERIAL,THAT WHILE PASSING THE ASSESSMENT ORDER HE HELD THAT THE ASSESSEE HAD NOT PROVED THAT EXPENDITURE WAS INCURRED FOR CARRYING OUT ITS BUSIN ESS,THAT EVEN DURING THE TIME OF APPELLATE PROCEEDING A NUMBER OF ADJOURNMENT HAD BEEN SOUGHT FOR BY THE ASSESSEE,THAT IT WAS ASKED TO FURNISH SUBMISSION IN RESPONSE TO THE GROUNDS OF AP PEAL FILED BY IT BEFORE THE FAA,THAT IN RESPONSE TO THAT IT FILED SOME PAPERS WHICH WERE NO T FILED BEFORE THE AO,THAT A REMAND REPORT WAS CALLED FOR FROM THE AO BY THE FAA,THAT THE ASSE SSEE DID NOT APPEAR BEFORE THE AO AND NOR DID IT PRODUCE ANY EVIDENCE IN SUPPORT OF THE CLAIM S MADE BY IT,THAT THE FAA HAD FORWARDED THE RR TO THE ASSESSEE AFTER RECEIVING IT FROM THE AO,T HAT THE ASSESSEE DID NOT FILE SUPPORTING EVIDENCE BEFORE HER ALSO,THAT BEFORE US ALSO NO DOC UMENT HAS BEEN FILED BY THE ASSESSEE .AS PER THE FAA DOCUMENTS FILED BY THE ASSESSEE BEFORE HER WERE NOT CERTIFIED AND WERE ONLY THE XEROX COPIES OF SOME DOCUMENTS,THAT THE AUTHENTICITY OF S UCH SOURCES WAS NEVER TESTED.IN THESE CIRCUMSTANCES SHE HELD THAT THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF ITS CLAIM OF INCURRING OF EXPENDITURE. WE ARE OF THE OPINION THAT IF THE ASSESSEE WANTED T HAT THE CLAIM MADE BY IT ABOUT INCURRING OF EXPENDITURE WHOLLY AND EXCLUSIVELY FOR BUSINESS PUR POSES FOR THE YEAR UNDER CONSIDERATION WAS TO ALLOWED IT SHOULD HAVE COOPERATED WITH THE AO/FAA B Y PRODUCING SOME EVIDENCE. CARDINAL RULE OF TAXATION JURISPRUDENCE EXPECT THAT THE ASSESSEE SHOULD SUPPORT THE CLAIM OF EXPENDITURE BY FURNISHING NECESSARY DOCUMENTARY EVIDENCES.ONUS IS ALWAYS ON THE ASSESSEE.IN THE MATTER UNDER CONSIDERATION THE ASSESSEE HAD NOT FILED EVEN CERTI FIED AND SIGNED COPIES BEFORE THE FAA.THE ITA/6159/FAIRDEAL DOCUMENTS PRODUCED BY IT DID NOT BEAR PAN OF THE PA RTIES CONFIRMING THE TRANSACTIONS ENTERED BY IT WITH THEM.IN THESE CIRCUMSTANCES THE FAA WAS PRE VENTED FROM VERIFYING THE GENUINENESS AND VERACITY OF THE CLAIMS MADE BY IT.A PERSON WITHHOLD ING BASIC INFORMATION CANNOT EXPECT THAT CLAIM MADE BY IT SHOULD BE ACCEPTED BY THE TAX AUTH ORITIES AND THAT ALSO WITHOUT ANY VERIFICATION. THE BEHAVIOR OF THE ASSESSEE CANNOT BE TERMED AS CO MING OUT WITH CLEAN HANDS.IT BLOCKED THE EACH AND EVERY EFFORT OF THE AO/FAA OF DETERMINING ITS EXACT TAX LIABILITY.IT NEVER EXPLAINED AS TO WHY IT HAD NOT PRODUCED SIGNED AND VERIFIED DOCU MENTS BEFORE THE FAA.IN ABSENCE OF VALID DOCUMENTS,IF SHE DECIDED THE APPEAL,AFTER RECEIVING RR FROM THE AO,NO FAULT CAN BE FOUND WITH HER.CONFIRMING HER ORDER,WE DECIDE EFFECTIVE GROUND OF APPEAL AGAINST THE ASSESSEE. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. 27 !12 8!! (!9 / 4 ):2 / $!2 ; . ORDER PRONOUNCED IN THE OPEN COURT ON 01 ST ,JULY, 2014 . (%5 / 3* ! % &!! < =(! 01 $! , 201 4 / 4 > SD/- SD/- ( . / D.MANMOHAN) ( !$%&' !$%&' !$%&' !$%&' / RAJENDRA) !'# / VICE PRESIDENT %! %! %! %! () () () () /ACCOUNTANT MEMBER / MUMBAI, =(! /DATE:01.07.2014. SK (%5 (%5 (%5 (%5 / // / -2? -2? -2? -2? @%?*2 @%?*2 @%?*2 @%?*2 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / !+, 2. RESPONDENT / -.+, 3. THE CONCERNED CIT(A)/ A B , 4. THE CONCERNED CIT / A B 5. DR F BENCH, ITAT, MUMBAI / ?C!4 -2 , . . &!! . 6. GUARD FILE/ 4! ! .!?2 .!?2 .!?2 .!?2 -2 -2-2 -2 //TRUE COPY// (%5!! / BY ORDER, / ! $! DY./ASST. REGISTRAR , /ITAT, MUMBAI