HARISH K BHAVSAR, MUMBAI V. ITO WAD 16(2)(1), MUMBAI

ITA 6995/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93260 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: H
• Next Hearing Date: 26-05-2015
• Assessment Year: 1999-2000
• Appeal Filed On: 29-11-2013
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence; Onus to prove
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H , MUMBAI BEFORE SHRI G.S. PANNU , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO . 6995/ M/ 2013 ASSESSMENT YEAR : 1999 - 2000 SHRI HARISH K. BHAVSAR 301, SAGAR MANSION 40, BHULABHAI DESAI RO AD, MUMBAI - 400 0 26 PAN: AEZPB 5467R VS. ITO WAD 16(2)(3 ) ROOM NO.221 , MATRU MANDIR, TRADEO ROAD, MUMBAI 400 0 07 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI JITENDRA KUMAR , D.R. DATE OF HEARING : 26.05.2015 DATE OF PRONOUNCEMENT : 22.07. 2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 18. 1 0 .2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEAR 1999 - 2000. 2. DESPITE SERVICE OF NOTICE, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE ON ANY OF THE DATES OF HEARING . WE THEREFORE PROCEED TO DECIDE THE APPEAL EX - PARTE OF T HE ASSESSEE AFTER HEARING THE LD. D.R. 3. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED C.I.T. (A) HAS ERRED IN LAW AND ASSESSING THE INCOME OF THE ASSESSEE AT RS. 40,00,000/ - . 2. THE LEARNED C.I.T. (A) HAS ERRED IN CONFIRMING THE EXPARTE ORDER U/S 144 R.W.S.254 OF THE INCOME TAX ACT ADDING RS.40,00,000/ - AS INCOME OF THE ASSESSEE FROM PROPERTY AT GIRGAON WHERE THE ASSESS HAS NOTHING TO DO WITH ITA NO.6995/M/2013 SHRI HARISH K. BHAVSAR 2 THE PROPERTY. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 4. THE BRIEF FACTS OF THE CASE ARE THAT INITIALLY THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS REOPENED BY THE AO U/S.147 OF THE I.T.ACT O N THE BASIS OF INFORMATION THAT THE ASSESSEE WAS JOINT OWNER OF THE PROP ERTY KNOWN AS PEDNEKAR GODWON BEARING C. S .NO. 1461, J.S.SETH ROAD, GIRGAON DIVISION, AMBERWADI, MUMBAI ALONG WITH HIS BROTHER SHRI GHANSHAYM K. BHAVSAR. THIS PROPERTY WAS NOTI FIED FOR ACQUISITION BY THE GOVT. OF MAHARASHTRA U/S.9 AND 10 OF LAND ACQUISITION ACT, 1894 AND THE SPECIAL LAND ACQUISITION OFFICER, MHADA HAS PAID COMPENSATION OF RS. 76,05,898/ - VIDE CHEQUE NO. 063021 DATED 8.12.1998. THE ASSESSEE DID NOT PARTICIPATE IN THE ASSESSMENT PROCEEDINGS. THE AO, THEREFORE, COMPLETED THE ASSESSMENT EX PARTE U /S.144 OF THE ACT AND HELD THAT THE ASSESSEE HAD NOT OFFERED THE COMPENSATION TO TAX. HE ACCORDINGLY ASSESSED THE TAXABLE INCOME OF ASSESSEE AT RS. 40,00,000/ - , WHICH INCLUDED 50% OF THE COMPENSATION RECEIVED PLUS INCOME FROM THE BUSINESS OF E STATE A GENT. THE ASSESSEE PREFERRED APPEAL AGAINST THE ASSESSMENT ORDER PASSED U/S.147 R.W.S144 OF THE ACT. IN APPEAL, THE CIT(A) , RELYING ON THE EVIDENCE BEING THE COPY OF RECEIPT AND CHEQUE ISSUED , WAS OF THE VIEW THAT THE COMPANY WAS THE OWNER OF IMMOVABLE PROPERTY ACQUIRED BY THE GOVT. OF MAHARASHTRA AND NOT THE ASSESSEE AND HIS BROTHER, WHO WERE THE DIRECTORS OF THE SAID COMPANY AND HENCE, DELETED THE ADDITION . BEING AGGRIEVED BY THE SAID DELETION, ORIGINALLY MADE BY THE AO, THE DEPARTMENT WENT IN APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL, VIDE ORDER DTD. 30.4.2010 IN APPEAL ITA NO. 7464/MUM/07 BY PUTTING RELIANCE ON THE EARLIER ORDER OF THE TRIBUNAL IN ITA NO. 7463/MUM/07 DATED 1.4.09 FOR AY. 1999 - 2000 IN THE CASE OF THE ASSESSEE'S BROTHER SHRI GHANSHAYAM B HAVSAR DI RECTED AS UNDER: . ITA NO.6995/M/2013 SHRI HARISH K. BHAVSAR 3 'AS THE FACTS ARE IDENTICAL IN THIS CASE, THEREFORE, WE CONSIDER IT FIT TO RESTORE THIS ISSUE IN RESPECT OF THE COMPENSATION RECEIVED BY THE ASSESSEE FROM THE GOVT. OF MAHARASHTRA TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN LIGHT OF THE OBSERVATIONS MADE BY THE TRIBUNAL IN THE CASE OF SHRI GHANSHYAM K BHAVSAR (SUPRA). 'THE AO IS DIRECTED TO GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AO IS ALSO DIRECTED TO MAKE THE REQUISITE ENQUIRIES WITH THE REVENUE AUTH O RITIE S IN RESPECT OF THE OWNERSHIP OF THE LAND ACQUIRED BY THE GOVERN M ENT.' FURTHER, WITH REGARDS TO ESTIMATION OF THE ESTATE A GENCY B USINESS BY THE AO, THE TRIBUNAL RESTORED TH E ISSUE TO THE FILE OF THE AO WITH T HE DIRECTION TO VERIFY WHETHER THE ASSESSEE HA D EARNED ANY INCOME FROM ESTATE AGENCY BUSINESS. 5. P URSUAN T TO THE DIRECTION GIVEN BY THE TRIBUNAL , THE AO AGAIN ISSUED NOTICE U/S. 143(2) AND 142(1) OF THE I.T. ACT FOR THE PURPOSE OF PROVIDING OPPORTUNITY TO THE ASSESSEE TO PRODUCE RELEVANT DOCUMENTS AND SUBMISSIONS AS PER THE DIRECTION GIVEN BY THE TRIBUNAL AND THE CASE WAS FIXED FOR 18 - 11 - 2011. HOWEVER, THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS BUT REQUESTED FOR ADJOURNMENT VIDE LETTER OF ADJOURNMENT SENT THROUGH POST . THE CASE WAS AGAIN FIXED BY T HE AO FOR 7 - 12 - 2011 REQUIRING THE ASSESSEE TO FURNISH THE NECESSARY DETAILS AND EXPLANATION. ON THE SAID DATE , THE REPRESENTATIVE OF THE ASSESSEE PRODUCED THE LETTER PLEADING THAT THE ASSESSEE WAS NOT THE OW NER OF THE PROPERTY IN QUESTION IN FACT, BHAVSAR CONSTRUCTION PVT. LTD. WAS THE OWNER OF THE PROPERTY AND THAT THE PAYMENT WAS RECEIVED BY M/S BHAVSAR CONSTRUCTION PVT. LTD. FROM THE GOVERNMENT AGAINST THE ACQUISITION OF THE PROPERTY. THE AO HOWEVER OBSERVED THAT THE ASSESSEE HAD NOT PRODUCED THE RELIABL E EVIDENCE IN SUPPORT OF HIS CLAIM THAT HE WAS NOT THE OWNER OF THE PROPERTY. THE AO IN HIS ORDER COMPLYING WITH THE DIRECTION OF THE TRIBUNAL ALSO MADE AN EFFORT TO ASCERTAIN THE OWNERSHIP OF THE PROPERTY FROM THE REVENUE AUTHORITIES AND SENT THE NECESSAR Y LETTERS IN THIS RESPECT. HOWEVER, NO INFORMATION WAS RECEIVED FROM THE ITA NO.6995/M/2013 SHRI HARISH K. BHAVSAR 4 REVENUE AUTHORITIES. SINCE THE ASSESSMENT WAS GOING TO BE TIME BARRED, THE AO COMPLETED THE ASSESSMENT AND ASSESSED THE INCOME OF THE ASSESSEE AT RS. 40,00,000/ - AS WAS ORIGINALLY ASSE SSED BY THE AO IN THE PROCEEDINGS U/S.147 R.W.S144 OF THE ACT. 6. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) , THE ASSESSEE PRODUCED CERTAIN EVIDENCE S . THE LD. CIT(A) CALLED THE REMAND REPORT OF THE AO IN RESPECT OF THE ADDITIONAL EVIDENCES SOUGHT TO BE PRODUCED BY THE ASSESSEE. IN THE REMAND PROCEEDINGS, THE ASSESSEE REITERATED THAT THE OWNER OF THE PROPERTY WAS M/S BHAVSAR CONSTRUCTION PVT. LTD. AND THE ASSESSEE WAS THE ONLY DIRECTOR OF THE COMPANY . THE AO, HOWEVER, ASKED THE ASSESSEE TO FURNISH BANK STATEMENT/BANK PASS BOOK TO SUBSTANTIATE THAT THE CHEQUE WAS DEPOSITED IN THE COMPANYS ACCOUNT AND THAT THE TRANSACTIONS WERE REFLECTED IN THE BOOKS OF ACCOUNT OF THE COMPANY. HOWEVER, THE ASSESSEE DID NOT FURNISH THE REQUIRED EVIDENCE. THE AO THEREAFTER SUBMITTED HIS REMAND REPORT IN THIS RESPECT TO THE CIT(A) . THE ASSESSEE FILED REJOINDER TO THE REMAND REPORT. AFTER CONSIDERING THE REMAND REPORT AND THE REJOINDER, THE CIT(A) DISMISSED THE APPEAL OF TH E ASSESSEE OBSERVING AS UNDER : - 3.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED AUTHORIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFICER. FROM THE CONDUCT OF THE ASSESSEE DURING THE COURSE OF ORIGINAL AND SECOND ASSESSMENT PROCEEDINGS, DURI NG THE REMAND PROCEEDINGS AND DURING THE PRESENT APPELLATE PROCEEDINGS, IT IS CLEAR THAT HE IS A RECALCITRANT ASSESSEE WHO DOES NOT ATTEND AND COMPLY WITH THE NOTICES ISSUED. THE ORIGINAL ASSESSMENT WAS FRAMED UNDER SECTION 144 R.W.S . 147 AS THE ASSESSEE D ID NOT COMPLY WITH THE NOTICES. THE SECOND ASSESSMENT WAS ALSO COMPLETED UNDER SECTION 144 READ WITH SECTION 254 IN VIEW OF THE NON - COMPLIANCE OF THE ASSESSEE. EVEN DURING THE PRESENT APPELLATE PROCEEDINGS AND DURING THE REMAND PROCEEDINGS, THERE HAS BEEN REPEATED NON-COMPLIANCE FROM THE ASSESSEE'S SIDE. DURING THE COUR SE OF PRESENT APPELLATE PROCEED INGS, ON 04/07/2013, THE ASSESSEE'S AUTHORIZED REPRESENTATIVE SHRI LALIT DAVE ATTENDED AND WAS ASKED TO ESTABLISH THAT THE COMPENSATION RECEIVED HAS BEEN OFFE RED BROUGHT ITA NO.6995/M/2013 SHRI HARISH K. BHAVSAR 5 TO TAX IN THE HANDS OF THE COMPANY, OF WHICH THE ASSESSEE WAS A DIRECTOR. TWENTY DAYS TIME WAS GIVEN TO THE APPELLAN T TO PRODUCE THE REQUIRED DETAIL S ON 24/07/2013. NO ONE ATTENDED ON THE GIVEN DATE, AFTER WHICH ANOTHER NOTICE DATED 01108/2013 WAS ISSUED FIXING THE HEARING ON 14/08/2013. NO ONE ATTENDED ON THE GIVEN DATE. ONCE AGAIN ANOTHER OPPORTUNITY WAS GIVEN BY A NOTICE DATED 06/09/2013 FIXING THE HEARING ON 19/09/2013. AGAIN NO ONE ATTENDED ON THE GIVEN DATE. THE AUTHORIZED REPRESENTATIVE W AS CONTACTED ON TELEPHONE AND WAS ASKED TO ATTEND AND PROVIDE THE REQUIRED DETAILS, TO WHICH HE ASKED FOR SOME T IME AND ASSURED THAT THE COMPLIANCE WOULD BE MADE IN THE FIRST WEEK OF OCTOBER, 2013. TILL DATE, NOTHING HAS BEEN PRODUCED TO ESTABLISH THAT THE IMPUGNED COMPENSATION HAS BEEN OFFERED/ BROUGHT TO TAX IN THE HANDS OF THE COMPANY, WHICH WOULD INCONTROVERTIBLY ESTABLISHED THAT NO ACTION IN THIS REGARD IS REQUIRED TO BE TAKEN IN THE HANDS OF THE ASSESSEE. IT IS INTERESTING TO NOTE THAT THE LAND IN Q UESTION WAS ACQUIRED BY THE GOVERNMENT AND THE COMPENSATION WAS PAID, 50% OF WHICH WAS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE AND THE REMAINING 50% IN THE HANDS OF ASSESSEE'S BROTHER SHRI GHANSHYAM BHAVSAR, WHOSE CASE ALSO WAS SET ASIDE BY THE HON'BLE ITAT, TO THE FILE OF THE ASSESSING OFFICER TO ENABLE THAT ASSESSEE TO PRODUCE THE REQUIRED DETAILS AND EVIDENCES TO ESTABLISH HIS CLAIM. EVEN THERE, THE APPELLANT I.E. THE ASSESSEE'S BROTHER, FAILED TO COMPLY WITH THE NOTICES ISSUED FROM TIME TO TIME AND THE ASSESSING OFFICER WAS COMPELLED TO COMPLETE THE ASSESSMENT EX - PARTE UNDER SECTION 144. EVEN DURING THE APPEAL AGAINST THE SAID ORDER UNDER SECTION 144 R.W. S . 254, THE APPELLANT DID NOT ATTEND AND DID NOT FILE ANY WRITTEN SUBMISSION BEFORE THE CLT(A) - 27 . IN VIEW OF THE REPEATED NON - ATTENDANCE, THE CLT(A) - 27 DISMISSED THE APPEAL FOR WANT OF PROSECUTION, VIDE ORDER DATED 17/1/2012. IN THE PRESENT CASE, SINCE THE APPELLANT HAS NOT COMPLIED WITH THE NOTICES ISSUED AND HAS NOT PRODUCED THE REQUIRED DETAILS BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROC EEDINGS, AS DIRECTED BY THE HON 'BLE ITA T, NOR DURING THE REMAND PROCEEDINGS AND HAS ALSO NOT COMPLIED WITH THE NOTICES ISSUED BY THE UNDERSIGNED DURING THE PRESENT APPELLATE PROCEEDINGS, AND THE ASSESS EE HAS FAILED TO SUFFICIENTLY ESTABLISH THAT THE IMPUGNED LAND DID NOT BELONG TO HIM BUT TO THE COMPANY, OF WHICH HE WAS UNDISPUTEDLY THE DIRECTOR, AND THAT THE CO MP ENSATION HAS BEEN OFFERED/ BROUGHT TO TAX IN THE HANDS OF THE COMPANY, THE GROUNDS OF APPEA L CANNOT BE ACCEPTED. T HE GROUNDS OF APPEAL ARE THEREFORE DISMISSED. 7. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. ITA NO.6995/M/2013 SHRI HARISH K. BHAVSAR 6 8. AS OBSERVED ABOVE, THE ASSESSEE FROM THE VERY BEGINNING HAS NOT PROPERLY ATTENDED THE ASSESSMENT PRO CEEDINGS. THE ASSESSMENT WAS FRAMED EX PARTE OF THE ASSESSEE U/S.144 OF THE ACT. THE MATTER TRAVELLED UPTO THE LEVEL OF THE TRIBUNAL. THE TRIBUNAL DIRECTED THE AO TO REFRAME THE ASSESSMENT AFTER CONSIDERING THE EVIDENCES AND THE SUBMISSIONS OF THE ASS ESSEE . THE ASSESSEE AGAIN FAILED TO SUBMIT THE REQUISITE EVIDENCES TO THE AO. THE AO, THEREFORE, AGAIN ASSESSED THE SAME INCOME OF THE ASSESSEE AS WAS ORIGINALLY ASSESSED IN THE ASSESSMENT PROCEEDINGS U/S. 147 OF THE ACT . IN THE APPEAL BEFORE THE CIT(A) , THE CIT (A) REMANDED THE MATTER BACK TO THE AO FOR CONSIDERATION OF ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE. HOWEVER, THE ASSESSEE AGAIN FAILED TO SUBMIT THE REQUISITE EVIDENCES AS WERE ASKED BY THE AO. CONSIDERING THE REMAND REPORT AND REJOINDER OF THE AS SESSEE, LD. CIT(A) HELD THAT THE ASSESSEE HAD FAILED TO ESTABLISH THAT THE LAND IN QUESTION DID NOT BELONG TO HIM BUT TO THE COMPANY. HE, THEREFORE, ASSESSED 50% SHARE OF COMPENSATION IN THE HANDS OF THE ASSESSEE. BEFORE US, THE ASSESSEE HAS AGAIN FAILED T O APPEAR WHICH MEANS THAT THE ASSESSEE IS RELUCTANT IN PURSUING HIS CLAIM. EVEN OTHERWISE AS DISCUSSED BY THE LOWER AUTHORITIES , THE ASSESSEE HAS FAILED TO DISCHARGE THE BURDEN TO PROVE THAT THE COMPENSATION WAS NOT RECEIVED BY HIM BUT BY THE COMPANY. UNDE R SUCH CIRCUMSTANCES, WE DO NOT FEEL IT NECESSARY TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITIES. ACCORDINGLY, APPEAL OF THE ASSESSEE IS HEREBY DISMISSED. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED . ORDER PRONOUNCED IN T HE OPEN COURT ON 22.07. 2015 . SD/ - SD/ - ( G.S. PANNU ) ( SANJAY GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMB AI, DATED: 22.07 .2015 . * JK ,SPS /PKM ,PS ITA NO.6995/M/2013 SHRI HARISH K. BHAVSAR 7 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.