L.L. CONSTRUCTIONS, MUMBAI V. ITO 20(1)(4), MUMBAI

ITA 7293/MUM/2014

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4633 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Principle of natural justice
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BE NCH, MUMBAI BEFORE SHRI C.N. PRASAD, JM AND SHRI RAJESH KUMAR, AM ITA. 7293/MUM/2014 ASSESSMENT YEAR 2009-10 L.L. CONSTRUCTIONS LOK BHAVAN LOK BHARATI COMPLEX MAROL MAROSHI ROAD ANDHERI (E)MUMBAI-400 059. VS. INCOME TAX OFFICER WARD-20(1)(4), 6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUGH, MUMBAI-400 012. PAN : A AAFL 0517 F ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY NONE RESPONDENT BY MS. NEHA THAKUR-DR DATE OF HEARING 11/10/2018 DATE OF PRONOUNCEMENT 17/10/2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 29/09/2014 OF CIT(A)-31, MUMBAI FOR ASSESSMENT YEAR (AY ) 2009-10. THE GROU NDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (APPEAL) ERRED IN PASSING THE IMPUGNED APPELLATE ORDER IN VIOLATION OF PRINCI PLE OF NATURAL JUSTICE BY CONFIRMING AND ENHANCING BY RS.27,08,905/- THE IMPUGNED ASSESSMENT MADE U/S 143(3). 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (APPEAL) ERRED IN NOT ALLOWING GROUND NO.4 AND INSTEAD IN INVOKING PROVIS IONS OF SECTION 68 OF THE ACT AND THEREBY ADDING TO THE RETURNED INCOME A SUM OF RS. 1,11,69,975/- IN AGGREGATE COMPRISING ADVANCES FROM CUSTOMERS AT RS.54,12,663/-, ADVANCES FROM CUSTOMERS TOWARDS SOCIETY MAINTENANCE OF RS.27,41,547/- AND RS.30,15,765/- RESPECTIVELY FOR AMBEDKAR SOCIETY A ND POWAI SOCIETY HOLDING THEM AS UNPROVED AND NON-GENUINE. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (APPEAL) ERRED IN TRAVELLING BEYOND HER JURISDICTION VESTED IN HER IN TERMS OF S ECTION 251 OF THE I.T. ACT, 1961 BY INVOKING PROVISIONS OF SECTION 68 OF THE I.T. ACT, 1961 FOR MAKING THE IMPUGNED ADDITION OF RS.1,11,69,975/- WHICH NEITHER WAS THE SUBJECT MATTER OF ASSESSMENT NOR TO WHICH THERE WAS ANY APPLICATION OF MIND BY THE LEARNED A.O. 4. WITHOUT PREJUDICE TO THE GROUNDS AFORESAID AND I N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) ERRED IN INVOKING THE PROVI SIONS OF SECTION 68 OF THE I.T. ACT, 1961 IGNORING ITA NO. 7293/MUM/2014 L.L. CONSTRUCTIONS 2 SETTLED LAW THAT 'PREVIOUS YEAR' REFERRED TO IN SEC TION 68 IS THE 'PREVIOUS YEAR' IN WHICH SUCH SUM ST OOD CREDITED IN THE BOOKS OF A/C AND NOT THE PREVIOUS Y EAR RELEVANT TO ASSESSMENT YEAR UNDER APPEAL. 5. WITHOUT PREJUDICE TO THE ABOVE GROUND THE LEARN ED CIT (APPEAL) ERRED IN APPLYING SECTION 68 TO THE IMPUGNED CREDIT BALANCES BROUGHT FORWARD WITHOUT AP PRECIATING THAT THE SAME RELATED TO BUSINESS TRANSACTION AND NOT RELATED IN ANY MANNER WHATSOEVE R TO UNEXPLAINED CREDITS WITHIN THE MEANING OF SECTION 68 OF THE ACT. THE APPELLANT CRAVES LEAVE TO, ADD TO, AMEND, ALTER , AND 7 OR TO DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2. AT THE OUTSET WE WOULD LIKE TO MENTION THAT AT T HE TIME OF HEARING NEITHER THE ASSESSEE NOR HIS AUTHORISED REPRESENTATIVE (A.R) WERE PRESEN T TO ATTEND THE HEARING NOR ANY APPLICATION SEEKING ADJOURNMENT WAS RECEIVED. WE NO TE FROM ORDER SHEET ENTRIES THAT CASE OF THE ASSESSEE HAD BEEN ADJOURNED A NUMBER OF TIMES P RIOR TO THIS DATE AND ON NONE OF THE DATES NEITHER THE ASSESSEE NOR HIS AR ATTENDED THE HEARIN G DESPITE SERVICE OF NOTICE THROUGH RPAD.INITIALLY THE CASE WAS FIXED FOR HEARING ON 07 /07/2016 AND SINCE THE BENCH DID NOT FUNCTION THAT DAY , THE HEARING WAS ADJOURNED TO 06/09/2016 AND PARTIES WERE INFORMED ABOUT THE NEXT DATE OF HEARING THROUGH NOTICE BOARD . ON 06/09/2016 AT THE TIME OF HEARING ASSESSEES COUNSEL VIDE LETTER DATED 29/06/2016 SOU GHT FOR ADJOURNMENT OF THE HEARING WHICH IN TURN WAS ADJOURNED TO 22/02/2017 AND THE PARTIES WERE INFORMED ACCORDINGLY. ON 22/02/2017 THE BENCH DID NOT FUNCTION AND THE HEARI NG OF THE CASE WAS FURTHER ADJOURNED TO 12/07/2017 . ON 12/07/2017 WHEN THE CASE WAS CALLED UP FOR HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE PARTIES WERE INFORME D THROUGH RPAD REGARDING THE HEARING BEING FIXED ON 18/10/2017. ON 18/10/2017 AGAIN THE HEARING WAS ADJOURNED AS BENCH DID NOT FUNCTION AND PARTIES WERE INFORMED ABOUT NEXT DATE OF HEARING ON 24/01/2018 THROUGH NOTICE BOARD. ON 24/01/2018 AGAIN THE BENCH DID NOT FUNCTI ON AND PARTIES WERE INFORMED ABOUT NEXT DATE OF HEARING ON 24/04/2018 THROUGH NOTICE BOARD. ON 24/04/2018 NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE BENCH ADJOURNED THE HEARING TO 20/06/2018 AND PARTIES WERE INFORMED THROUGH RPAD. ON 20/06/2018 AGAIN THE BENCH DID NOT FUNCTION AND HEARING WAS ADJOURNED ITA NO. 7293/MUM/2014 L.L. CONSTRUCTIONS 3 TO 30/07/2018 AND PARTIES WERE INFORMED THROUGH NOT ICE BOARD. ON 30/07/2018 AGAIN THE BENCH DID NOT FUNCTION AND MATTER WAS ADJOURNED FOR HEARING ON 06/09/2018. ON 06/09/2018 NONE APPEARED ON BEHALF OF THE ASSESSEE WHEREAS DEP ARTMENT WAS REPRESENTED BY SHRI CHAITANYA ANJARIYA. SINCE NONE WAS PRESENT ON BEHAL F OF THE ASSESSEE THE CASE WAS AGAIN ADJOURNED FOR HEARING ON 11/10/2018. ON 11/10/2018 AGAIN NONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. FROM THE CONDUCT O F THE ASSESSEE IT IS CLEAR THAT ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. WE, THEREFORE, P ROCEED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER HEARING THE LD. DR. 4. AFTER PERUSING THE ASSESSMENT ORDER AND ORDER OF THE FIRST APPELLATE AUTHORITY (FAA) AND HEARING THE LD. DR WE OBSERVE THAT THE ISSUE IN VOLVED IN THE PRESENT APPEAL IS AGAINST THE CONFIRMATION OF ORDER PASSED BY AO U/S. 143(3) AND ALSO ENHANCEMENT OF ASSESSMENT BY LD CIT(A) DURING THE APPELLATE PROCEEDING. THE CIT(A ) HAS ENHANCED ASSESSMENT BY MAKING AN ADDITION U/S. 68 TO THE TUNE OF RS.1,11,69,975/- COMPRISING ADVANCES FROM CUSTOMER RS.54,12,663/- ; ADVANCES TOWARDS MAINTENANCE OF TW O SOCIETIES (I) AMBEDKAR PROJECT RS.27,41,547/-AND (II) POWAI PROJECT RS.30,15,765 /- BY HOLDING THEM AS NON-GENUINE AND UNPROVED. AFTER PERUSING THE ORDER OF CIT(A) WE FIN D THAT ORDER IS QUITE REASONABLE AND THERE IS NO MATERIAL BEFORE US TO TAKE A DIFFERENT VIEW T HAN THAT WHAT HAS BEEN DECIDED BY CIT(A). ACCORDINGLY WE UPHOLD THE ORDER OF CIT(A) AND DISMI SS THE APPEAL OF THE ASSESSEE . 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH OF OCTOBER, 2018. SD/- SD/ - (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 17/10/2018 JV.SR.PS. COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / ITA NO. 7293/MUM/2014 L.L. CONSTRUCTIONS 4 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.