SUDHIR S. JHUNJHUNWALA H.U.F, MUMBAI V. ACIT CEN CIR 11, MUMBAI

ITA 663/MUM/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9353 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 09-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HEENA SINGH
• Keywords: Business income
• Section: 40A(3); 142(1); 133A; 153A; 68; 132; 144

Judgement Text

, , H , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H , MUMBAI , , , BEFORE SHRI JOGINDER SINGH, J UDICIAL M EMBER, A ND SHRI SA NJAY ARORA , A CCOUNTANT M EMBER ITA NO. 657 TO 660 /MUM/201 1 ASSESSMENT YEAR: 200 2 - 03 TO 2005 - 06 ITA NO. 662 TO 663/MUM/2011 ASSESSMENT YEAR: 2006 - 07 TO 2007 - 08 ITA NO. 665/MUM/2011 ASSESSMENT YEAR: 2008 - 09 SUDHIR S. JHUNJUNWALA HUF FLAT NO.41/42, 5 TH FL OOR, MAGHNA APARTMENT, S.V. ROAD , SANTACRUZ (W) MUMBAI - 4000 54. / VS. ACIT - CENTRAL CIRCLE - 11 , AAYKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 ( / APPELLANT ) ( / R ESPONDENT ) P.A. NO.AA HHS 7628 R / ASSESSEE BY NONE / REVENUE BY SMT. HEENA SINGH PANDEY CIT - DR / DATE OF HEARING : 09/03 /2015 / DATE OF PRONOUNCEMENT : 13 /03 /2015 / O R D E R PER JOGINDER SINGH (J UDICIAL M EMBER ) : ALL THESE APPEALS ARE BY THE ASSESSEE FOR DIFFERENT ASSESSMENT YEARS CHALLENG ING THE IMPUGNED CONSOLIDATED ORDER SUDHIR S. JHUNJHUNWALA 2 DT.27/10/2010 OF THE LD. FIRST APPELLATE AUTHORITY, CONFIRMING THE EX - PARTE ASSESSMENT ORDER PASSED U/S. 144 OF THE INCOME TAX ACT 1961, (HEREINAFTER THE ACT) AND FURTHER IN CONFIRMING THE TOTAL SALES AS UNEXPLAINED INCO ME OF THE ASSESSEE AS DETAILED IN THE RESPECTIVE APPEALS AND FURTHER MAKING DISALLOWANCE U/S. 40A(3) OF THE ACT HOLDING THAT THE PURCHASES MADE BY THE ASSESSEE WERE IN EXCESS OF RS.20,000/ - , MADE IN CASH OF THE RESPECTIVE ASSESSMENT YEARS. 2. DURING HEA RING OF THE APPEALS, NOBODY WAS PRESENT FOR THE ASSESSEE WHEREAS MRS. HEENA SINGH PANDEY, LD. CIT - DR WAS PRESENT FOR THE REVENUE . WE NOTE THAT ON 24/8/2013 NOBODY WAS PRESENT FOR THE ASSESSEE, THEREFORE, REGISTERED AD NOTICE WAS SENT TO THE ASSESSEE. ON 1 2.12.2013, THESE APPEALS WERE ADJOURNED TO 12.2.2014. AT THE REQUEST OF THE ASSESSEE. ON 3.6.2014, AT THE REQUEST OF THE ASSESSEE ADJOURNMENT WAS MADE FOR 22.7.2014. ON THAT DATE ALSO NOBODY WAS PRESENT FOR THE ASSESSEE , THUS, THE APPEAL WAS ADJOURNED TO 16.9.2014 AS LAST OPPORTUNITY. ON THAT DATE ALSO, AT THE REQUEST OF THE ASSESSEE THE APPEAL WAS ADJOURNED TO 11/11/2014 . ON THAT DAY ALSO NONE REPRESENTED THE ASSESSEE AND THUS AGAIN LAST OPPORTUNITY WAS GRANTED AND THE APPEAL WAS ADJOURNED TO 15/1/2015. AGAIN THE ASSESSEE REQUESTED FOR ADJOURNMENT AND THE BENCH GRANTED LAST OPPORTUNITY FOR 9/3/2015. TODAY AT THE TIME OF HEARING AGAIN NOBODY REPRESENTED THE ASSESSEE . THUS, WE ARE CONSTRAINED TO PROCEED EX - PARTE QUA THE ASSESSEE AND TEND TO DISPOSE OFF THE SE APPEALS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. CIT - DR CONTENDED THAT EVEN BEFORE THE ASSESSING OFFICER THE ASSESSEE NEVER CO - OPERATED AND FINALLY EX - PARTE ASSESSMENT U/S. SUDHIR S. JHUNJHUNWALA 3 144 OF THE ACT WAS FRAMED. LIKEWISE, BEFORE THE LD. FIRST APPELLATE AUTHORITY THE ASSESSEE DID NOT FILE NECESSARY DETAILS, THAT TOO, INSPITE OF REPEATED OPPORTUNITY, THEREFORE, THE ASSESSEE IS A HABITUAL OFFENDER. THE CONCLUSION DRAWN IN THE IMPUGNED ORDER WAS DEFENDED. 3. WE HAVE PERUSED THE RECORD AND CONSIDERED THE SU BMISSION OF THE LD. CIT - DR. WE FIND THAT A SEARCH AND SURVEY ACTION U/S. 132 AND 133A OF THE ACT WAS CARRIED OUT IN THE CASE OF SUDHIR JHUNJHUNWALA GROUP AND HIS ASSOCIATES ON 13.3.2008. THE RESIDENTIAL AND OFFICE PREMISES OF THE DIRECTORS AND OTHER MEMBE RS OF THE GROUP WERE SEARCHED. NOTICE U/S. 153A WAS ISSUED ON 3.11.2008 TO WHICH THE ASSESSEE DID NOT FILE RETURN WITHIN THE SPECIFIED TIME, THEREFORE, NOTICE U/S. 271F WAS ISSUED FOR NON - FILING OF RETURN ON 28.7.2009. ULTIMATELY, FINAL OPPORTUNITY WAS GRA NTED VIDE LETTER ISSUED ON 6.10.2009. NOTICE U/S. 142(1) ALONG WITH ANNEXURE WAS SERVED UPON THE ASSESSEE . THERE WAS NO COMPLIANCE BY THE ASSESSEE . ON ONE OCCASION THE ASSESSEE ATTENDED BUT DID NOT FILE ANY RETURN. INSPITE OF SO MANY OPPORTUNITIES/NOTICE S THE ASSESSEE NEITHER FILED ITS RETURN NOR FILED THE REQUISITE DETAILS. ULTIMATELY, THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S. 144 OF THE ACT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IT WAS FOUND THAT THE ASSESSEE GROUP WAS DEALING IN TEXTILE T RADING BUSINESS AND MOST OF THE TRANSACTIONS WERE MADE IN CASH. THE RELEVANT DETAILS ARE AVAILABLE IN PARA 5.1 AND OTHER PARAS ONWARDS OF THE RESPECTIVE ASSESSMENT ORDER. THE ASSESSING OFFICER MADE THE ADDITIONS/DISALLOWANCES AS UNEXPLAINED INCOME AND FURT HER U/S. 40A(3) OF THE ACT, WHICH ARE SUMMARISED AS UNDER : - SUDHIR S. JHUNJHUNWALA 4 ASSESSMENT YEAR ADDITION MADE AS UNEXPLAINED INCOME(RS.) DISALLOWANCE MADE U/S.40A(3) (RS.) 2002 - 03 5,45,600 92,020 2003 - 04 5,90,100 1,00,070 2004 - 05 6,75,500 1,06,025 2005 - 06 6,90,830 1,08.10 4 2006 - 07 6,74,970 1,04,440 2007 - 08 6,98,940 1,12,345 2008 - 09 7,68,834 1,23,579 3.1 THE LD.AO EXAMINED THE SEIZED MATERIAL /IMPOUNDED MATERIAL AND ALSO ON THE BASIS OF AVAILABLE RECORD HE MADE THE ASSESSMENT U/S. 144 OF THE ACT ON THE REASONING CONTAI NED PARA 5.1 OF THE ASSESSMENT ORDER BY CONCLUDING THAT THE ASSESSEE GROUP WAS INDULGING IN UNEXPLAINED CASH PURCHASES/SALES. 4. ON APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE ADDITIONS/DISALLOWANCES MADE IN THE RESPECTIVE ASSESSMENT O RDERS WERE CHALLENGED. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE FACTS AND UNFORTUNATELY SAME SITUATION HAPPENED AS THE ASSESSEE SIMPLY SOUGHT ADJOURNMENT AND DID NOT FILE THE NECESSARY DETAILS. THE RELEVANT DISCUSSION HAS BEEN MADE IN PA RA 2.3 ONWARDS. THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER FOR READY REFERENCE: - 2.3.1. I HAVE CAREFULLY AND DISPASSIONATELY CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. THE APPELLANT SUDHIR S. JHUNJHUNWALA 5 HAS NOT BEEN ATTENDING TO NOTICES AND OPPORTUNIT IES GIVEN TO THEM AS DISCUSSED BY THE ASSESSING OFFICER ON PAGE 1 AND 2 OF THE IMPUGNED ASSESSMENT ORDER. LD. ASSESSING OFFICER ISSUED NOTICE U/S.153A ON 3/11/2008, U/S.271F ON 28/7/2009. O PPORTUNITY LETTER ON 4/8/2009, SECOND OPPORTUNITY LETTER ON 6/10/20 09 AND THEN NOTICE U/S.142(1) ON 9/11/2009. UNFORTUNATELY, THE APPELLANT NEVER ATTENDED BEFORE THE ASSESSING OFFICER ON THE DUE DATES OF HEARING AS MENTIONED IN PARA 2 OF THE IMPUGNED ASSESSMENT ORDER. THE APPELLANT IS NOT ABLE TO FURNISH THE REQUISITE DET AILS BEFORE THE APPELLATE AUTHORITIES AS WELL. FIRST NOTICE IN ITNS 37 WAS ISSUED ON 26/2/2010 FIXING THE CASE FOR HEARING ON 31/3/2010. LD. AR SOUGHT AN ADJOURNMENT VIDE LETTER DATED 31/3/2010 AND THE APPEAL WAS ADJOURNED ON 30/4/2010. SECOND ADJOURNMENT LETTER WAS FILED ON 30/4/2010 AND THE APPEAL WAS ADJOURNED TO 25/5/2010. NOBODY ATTENDED ON 25/5/2010 AND ANOTHER OPPORTUNITY WAS GIVEN TO THE APPELLANT. LD. AR FURNISHED THIRD ADJOURNMENT LETTER VIDE LETTER DATED 8/6/2010 AND THE APPEAL WAS ADJOURNED TO 2 9/6/2010. FOURTH ADJOURNMENT LETTER WAS FURNISHED BY LETTER DATED 18/6/2010 AND THE APPEAL WAS ADJOURNED TO 7/7/2010 AT 10.30 A.M. FIFTH LETTER OF ADJOURNMENT WAS FURNISHED ON 6/7/2010 AND ON LD. AR ' S REQUEST APPEAL WAS ADJOURNED TO 5/8/2010 AT 11.30 A.M. SIXTH LETTER OF ADJOURNMENT WAS FURNISHED ON 4/8/2010 AND ON THEIR REQUEST LAST AND FINAL ADJOURNMENT WAS GRANTED TO THE APPELLANT FOR FURNISHING FINAL WRITTEN SUBMISSION ON 27/8/2010 AT 10.30 A.M. LD. AR VIDE THEIR SEVENTH LETTER SUDHIR S. JHUNJHUNWALA 6 OF ADJOURNMENT DATED 26/8 /2010 REQUESTED FOR ANOTHER ADJOURNMENT AND THE APPEAL WAS AGAIN FIXED FOR HEARING ON 8/9/2010. ON 8/9/2010 LD. AR SRI J.P. BAIRAGRA, FCA ATTENDED BUT COULD NOT FURNISH ANY DETAILS BECAUSE HE WAS NOT HAVING THE REQUISITE DETAILS WITH HIM BECAUSE OF VARIOUS REASONS AS DISCUSSED IN THE PRECEDING PARAGRAPHS. APPEAL WAS ADJOURNED TO 22/9/2010 AT HIS REQUEST. LD. AR VIDE THEIR LETTER EIGHTH LETTER OF ADJOURNMENT DATED 20/9/2010 REQUESTED FOR ANOTHER ADJOURNMENT AND ON THEIR REQUEST LAST AND FINAL HEARING WAS GRA NTED TO THE APPELLANT ON 12/10/2010 FOR FINAL ARGUMENT. LD. AR SHRI JAIDEV, ADVOCATE AND PARTNER OF M/S. M.L. BHUWANIA & CO. ATTENDED AND AGAIN NO DETAILS COULD BE FURNISHED. AGAIN, ON HIS REQUEST LAST AND FINAL OPPORTUNITY WAS GRANTED TO THE APPELLANT AND THEIR LD. ARS FOR FINAL ARGUMENT ON 27/10/2010. NOBODY ATTENDED ON THE LAST AND FINAL DATE OF HEARING. LD. AR DID NOT ATTEND THE HEARING AND THE APPEAL IS DECIDED ON THE BASIS OF WRITTEN SUBMISSIONS, STATEMENT OF FACTS AND MATERIAL AVAILABLE IN THE APPELLA TE FOLDER; 4.1 W E NOTE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DULY EXAMINED THE FACTS U/S. 68 ALONG WITH VARIOUS CASE LAWS AS DISCUSSED IN PARA 2.3.4 AND FINALLY AFFIRMED THE ADDITIONS AS UNEXPLAINED INCOME U/S. 68 OF THE ACT BY EXAMINING E ACH ASSESSMENT YEAR SEPARATELY. WE ARE SATISFIED WITH THE REASONING CONTAINED IN THE IMPUGNED ORDER UNDER THE FACTS AND THE CIRCUMSTANCES AVAILABLE ON RECORD. WE HAVE ALSO EXAMINED THE MATERIAL AVAILABLE ON RECORD AND CONSIDERED THE SUDHIR S. JHUNJHUNWALA 7 SUBMISSIONS OF LD. CIT - DR. BEFORE US ALSO THE ATTITUDE OF THE ASSESSEE IS SAME AS THE ASSESSEE MERELY FILED THE APPEALS AND NEITHER FILED NECESSARY DETAILS NOR REPRESENTED ITS CASE AND INSPITE OF REPEATED FINAL OPPORTUNITIES. TODAY, AS MENTIONED EARLIER THE ASSESSEE EVEN DID NO T BOTHER TO ATTEND THE PROCEEDINGS OR TO SEEK ADJOURNMENT. IN THE TOTALITY OF THE FACTS, MATERIAL AVAILABLE ON RECORD, ATTITUDE OF THE ASSESSEE IT CLEARLY OOZES OUT THAT THE ASSESSEE HAS NOTHING TO SAY IN HIS DEFENCE. THUS, WE FIND NO INFIRMITY IN THE CO NCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CONSEQUENTLY ALL THESE APPEALS ARE HAVING NO MERIT, THEREFORE, DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSIO N OF THE HEARING ON 13 / 0 3 /2015 . 13 / 0 3 / 2015 SD/ - ( SANJAY ARORA ) SD/ - ( JOGINDER SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 13 /0 3 /201 5 JV, SR. P.S . / . . . SUDHIR S. JHUNJHUNWALA 8 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI