TINSULA INVESTMENTS P. LTD, MUMBAI V. ITO WD 9(3)(3), MUMBAI

ITA 6898/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8554 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 22-10-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 04-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V KRISHNAMOORTHY
• Keywords: Business income; Principle of natural justice
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI . . , . / BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER / AND , . . SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 6898/MUM/2010 / ASSESSMENT YEAR 2003-04 TINSULA INVESTMENTS PVT. LTD., PINKY PLAZA, II FLOOR, 5 TH ROAD, KHAR (W) MUMBAI-400 052. PAN: AAACT 6463 D VS. INCOME TAX OFFICER, WD 9(3)(3), AAYAKAR BHAVAN, MUMBAI. ( / APPELLANT ) ( ! / RESPONDENT ) ' / APPELLANT BY : NONE ! # ' /RESPONDENT BY : SHRI V. KRISHNAMOORTHY # $%& / DATE OF HEARING : 22 -10-2012 '( # $%& / DATE OF PRONOUNCEMENT : 22 -10-2012 )* / O R D E R PER RAJENDRA, AM THE FOLLOWING ARE THE GROUNDS OF APPEAL FILED BY TH E APPELLANT AGAINST THE ORDER DT. 23-07-2010 OF THE CIT(A)-20, MUMBAI: 1. THE CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASS ESSING OFFICER LEVYING PENALTY U/S. 271(1)( C ) OF THE ACT, WITHOUT GIVING ANY OPPORTUN ITY OF HEARING TO THE APPELLANT. 2. THE CIT(A) HAS BY HIS TWO CONSECUTIVE LETTERS DT. 1 0-05-2010 AND 14-06-2010 ADJOURNED THE HEARING TWICE WHICH WAS FIXED FOR 21- 05-2010 AND 29-06-2010 RESPECTIVELY TO 29-06-2010 AND 28-07-2010. THE APP ELLANT APPEARED ON THE DATES FIXED BUT THE CIT (A) HAD ALREADY PASSED AN EXPARTE ORDER ON 23-07-2010 AND THEREFORE ORDER PASSED WITHOUT AFFORDING ANY OPPORT UNITY TO THE APPELLANT VIOLATES THE PRINCIPLES OF NATURAL JUSTICE AND NEEDS TO BE SQUAS HED. 3. THE APPELLANT PRAYS THAT THE EX-PARTE ORDER PASSED BASED ON THE FACTS AS AFORESTATED IS ABSOLUTELY BAD IN LAW AND NEEDS TO BE SQUASHED A ND THE PENALTY LEVIED U/S. 271(1) ( C ) BE DELTED. 4. THE CIT(A) ERRED IN CONFIRMING THE PENALTY ORDER IN RESPECT OF RS. 2,86,000/- AND RS. 2,98,876/- DISCLOSED BY THE APPELLANT AS BUSINESS I NCOME BUT ASSESSED BY THE ITA NO. 6898/MUM/2010 TINSULA INVESTMENTS PVT. LTD., 2 ASSESSING OFFICER AS INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES RESPECTIVELY. 5. THE APPELLANT SUBMITS THAT IN DISCLOSING THE ABOVE TWO INCOMES AS BUSINESS INCOME IT HAS RELIED ON THE ASSESSMENT U/S. 143(3) IN ITS OWN CASE FOR THE AY 1997-98 WHEREIN BOTH THE RECEIPTS WERE ACCEPTED AS BUSINESS INCOME. 6. THE CIT(A) ERRED IN CONFIRMING THE PENALTY ORDER IN RESPECT OF RS. 2,65,810/- BEING ADDITION MADE BY THE ASSESSING OFFICER U/S. 2(22)(E ) WITHOUT APPRECIATING THE FACTS THAT THE LOAN TAKEN BY THE APPELLANT FROM ITS SUBSI DIARY PINKY PROPERTIES PVT LTD WAS IN THE NATURE OF A COMMERCIAL TRANSACTION AS THE AP PELLANT IS IN THE BUSINESS OF FINANCING AND INVESTMENTS. 7. THE APPELLANT SUBMITS THAT IT HAS NO WHERE CONCEALE D THE PARTICULARS OF INCOME AND THE MERE FACT THAT THE ASSESSING OFFICER HAS TREATE D THE DISCLOSED RECEIPTS UNDER A DIFFERENT HEAD OF INCOME DOES NOT IN ANY WAY AMOUNT TO CONCEALMENT OF INCOME AND OR FILING INACCURATE PARTICULARS AND THEREFORE IN V IEW OF THE DECISION OF THE HON/ SUPREME COURT IN RELIANCE PETROPACKS LTD NO PENALTY CAN BE LEVIED ON THE FACTS OF THE CASE. 8. THE APPELLANT THEREFORE PRAYS THAT IN VIEW OF THE A FORESAID, THE PENALTY LEVIED U/S. 271 (1)( C ) BE DELETED. 9. YOUR APPELLANT RESERVES THE RIGHT TO ADD, DELETE , ALTER, AMEND ANY OF THE GROUNDS OF APPEAL. 2. ASSESSEE WAS INFORMED THAT MATTER WILL BE HEARD ON 22-10-2012. BUT, NO ONE APPEARED ON BEHALF OF ASSESSEE. NOR THERE IS ANY APPLICATION FOR ADJOURNMENT. IN VIEW OF ABOVE, IT APPEARS THAT ASSESSEE IS NOT INTE RESTED IN PROSECUTING THIS APPEAL. HENCE, THIS APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED FOR NON- PROSECUTION. IN THIS REGARD, WE ARE SUPPORTED BY THE DECISION IN TH E CASE OF CIT VS. B.N. BHATTACHARGEE AND ANOTHER, REPORTED IN 118 ITR 460 (RELEVANT PAGES 477 & 478) WHEREIN THEIR LORDSHIPS HAVE HELD THAT: THE APPEAL DOES NOT MEAN MERELY FILING OF THE AP PEAL BUT EFFECTIVELY PURSUING IT. 3. IN THIS REGARD WE ARE ALSO SUPPORTED BY THE DECISI ON IN THE CASE OF CIT VS MULTIPLAN INDIA (P) LTD., 38 ITD 320 (DEL). IT(SS )A NO. 01/MUM/2008 SUNNY SOUNDS P. LTD., 4. IN VIEW OF THE ABOVE, AND ALSO CONSIDERING THE PRO VISION OF RULE 19 OF THE APPELLATE TRIBUNAL RULES 1963, APPEAL OF THE ASSESS EE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED FOR NON- PROSECUTION. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND OCTOBER, 2012. SD/- SD/- ( . . / B.R. MITTAL ) ( / RAJENDRA ) )+ / JUDICIAL MEMBER & )+ / ACCOUNTANT MEMBER MUMBAI, ,) DATE: 22 ND OCTOBER, 2012 TNMM ITA NO. 6898/MUM/2010 TINSULA INVESTMENTS PVT. LTD., 3 )* )* )* )* # ## # $- $- $- $- .-$ .-$ .-$ .-$ / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR E BENCH, ITAT, MUMBAI 6. GUARD FILE !-$ $ //TRUE COPY// )* )* )* )* / BY ORDER, / // / / 0 0 0 0 DY./ASSTT. REGISTRAR , / ITAT, MUMBAI