ATMAN COOERCIAL PVT. LTD., MUMBAI V. ITO - 4(1)(3), MUMBAI

ITA 6338/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5404 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO . 6338 / MUM . /2018 ( ASSESSMENT YEAR : 20 09 10 ) M/S. ATMAN COMMERCIAL PVT. LTD. 505 YOGESHWAR, 135, KAZI SAYED STREET MASJID, MUMBAI 400 003 PAN AABCE6455F . APPELLANT V/S INCOME TAX OFFICER WARD 4 (1) ( 3 ) , MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI CHAUDHARY ARUNKUMAR SINGH DATE OF HEARING 0 5 .09.2019 DATE OF ORDER 25.09.2019 O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 31 ST JULY 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 2, MUMBAI, FOR THE ASSESSMENT YEAR 2009 10. 2 . WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. ACCORDINGLY, I PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE 2 M/S. ATMAN COMMERCIAL PVT. LTD. LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL ON RECORD. 3 . BRIEF FACTS ARE, THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 29 TH SEPTEMBER 2009, DECLARING LOSS OF ` 4,726. SUBSEQUENTLY, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT UNDER SECTION 147 OF TH E ACT ON THE REASONING THAT THE ASSESSEE HAS NOT OFFERED SHORT TERM CAPITAL GAIN ON SALE OF A GALA. HE FURTHER FOUND THAT THE ASSESSEE HAD CLAIMED DEDUCTION OF ` 5 LAKH ON ACCOUNT OF BROKERAGE PAID. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO FURNISH THE DETAILS RELATING TO SALE AND PURCHASE OF GALA, BROKERAGE PAID, ETC. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSI NG OFFICER PROCEEDED TO ASSESS THE INCOME FROM SALE OF GALA AS SHORT TERM CAPITAL GAIN . WHILE DOING SO, HE ALLOWED ASSESSEES CLAIM OF BROKERAGE PAYMENT @ 2%. BEING AGGRIEVED WITH THE AFORESAID ADDITION, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4 . L EARNED COMMISSIONER (APPEALS) , AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , DID NOT FIND MERIT IN THEM AND ACCORDINGLY UPHELD THE DECISION OF THE ASSESSING OFFICER IN ASSESSING THE GAIN DERIVED FROM SALE OF GALA AS SHORT TERM CAPITAL GAIN AND ALSO REDUCING THE BROKERAGE PAYMENT FROM 5% TO 2%. 3 M/S. ATMAN COMMERCIAL PVT. LTD. 5 . I HAVE HEARD THE LEARNE D DEPARTMENTAL REPRESENTATIVE AND PERUSED MATERIAL ON RECORD. UNDISPUTEDLY, ON THE BASIS OF SPECIFIC INFORMATION RECEIVED INDICATING THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, THE ASSESSING OFFICER HAD RE OPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. THAT BEING THE CASE, I DO NOT FIND ANY INFIRMITY IN THE ACTION OF THE ASSESSING OFFICER IN EXERCISING POWER UNDER SECTION 147 OF THE ACT. THEREFORE, THE RE OPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT IS VALID. AS REGARDS THE MERITS O F THE ISSUE, THE DISPUTE IS BASICALLY CONFINED TO BROKERAGE PAYMENT OF ` 5 LAKH. AS RIGHTLY OBSERVED BY LEARNED COMMISSIONER (APPEALS) , CONSIDERING THE SALE VALUE OF THE PROPERTY, PAYMENT OF BROKERAGE SHOWN BY THE ASSESSEE IS UNREASONABLY HIGH AND EXCESSIVE. FURTHER, THE ASSESSEE HAS ALSO NOT BROUGHT ON RECORD ANY COGENT EVIDENCE TO ESTABLISH THE AUTHENTICITY OF BROKERAGE PAYMENT. THAT BEING THE CASE, THE DEPARTMENTAL AUTHORITIES WERE JUSTIFIED IN RESTRICTING THE BROKERAGE PAYMENT TO 2% OF THE SALE VALUE. ACCORDINGLY, I UPHOLD THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. GROUNDS ARE DISMISSED. 6 . IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 25.0 9 .2019 SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 25.09.2019 4 M/S. ATMAN COMMERCIAL PVT. LTD. 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