GANESH ATMARAM MOKASHE, PUNE V. DCIT CEN CIR 39, MUMBAI

ITA 7458/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93336 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 21-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 18-12-2013
• Court: TRIBUNAL
• Department Lawyers: L K S DEHIYA
• Keywords: Search and seizure; Non compliance; Onus to prove
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO. 7458/M/2013 (AY:2003 - 2004 ) I.T.A. NO. 7459/M/2013 (AY:2003 - 2004 ) SHRI GANESH ATMARAM MOKASHE, FLAT NO.6/2B, DHANRAJ COMPLEX, NEAR ASHOK THEATRE, PIMPRI, PUNE - 411 017. / VS. DCIT, CENTRAL CIRCLE 39, MUMBAI. ./ PAN : ARQPM0739F ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : NONE / REVENUE BY : L.K.S. DEHIYA, CIT / DATE OF HEARING : 21 .07.2015 / DATE OF PRONOUNCEMENT :29 .07.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE CIT (A) 36, MUMBAI COMMONLY DATED 27.9.2013 FOR THE ASSESSMENT YEARS 2003 - 04 AND 2004 - 05. SINCE, THE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL, THEREFOR E, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. 2. SINCE, THE GROUNDS RAISED IN BOTH THE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF REFERENCE, THE GROUNDS RAISED IN THE YEAR 2003 - 2004 AR E REPRODUCED AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN PASSING THE EX - PARTE ORDER ON THE ALLEGED GROUND OF NON - COOPERATION ON THE PART OF THE APPELLANT. ALL THE OBSERVATIONS / FINDINGS / CONCLUSIONS DRAWN BY THE LD CIT (A) IN THIS REGARD BEING FALSE AND CONTRARY TO THE RECORDS THE SAME MAY PLEASE BE DELETED AND CONSEQUENTLY THE IMPUGNED ORDER PASSED BY THE LD CIT (A) MAY PLEASE BE SET ASIDE AND THE MATTER MAY PLEASE BE RESTORED TO THE FILE OF THE LD C IT (A) FOR DECIDING THE SAME AFRESH. 2. THE LD CIT (A) OUGHT TO HAVE CONSIDERED THE VOLUMINOUS WRITTEN SUBMISSIONS FILED BEFORE HIM BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS AND OUGHT TO HAVE DECIDED THE APPEAL ON MERITS. THE IMPUGNED APPELLANT OR DER PASSED BY THE LD CIT (A) BEING BAD IN LAW AND WITHOUT JURISDICTION THE SAME MAY PLEASE BE VACATED. 2 3. BEFORE US, NONE APPEARED TO REPRESENT THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS. FROM THE RECORD, WE FIND THE CASE WAS ADJOURNED DUE TO LACK OF RE PRESENTATION ON BEHALF THE ASSESSEE. CONSIDERING THE CONTINUOUS NON - REPRESENTATION OF THE ASSESSEE, WE PROCEED TO ADJUDICATE THE APPEAL WITH THE HELP OF THE LD DR FOR THE REVENUE. 4. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE, WHO IS AN INDIVIDUAL, FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. NIL. SEARCH AND SEIZURE ACTION U/S 132 WAS CARRIED OUT IN THE CASE OF JAI CORP GROUP AS WELL AS THE ASSESSEE. ASSESSEE IS ONE OF THE LAND AGGREGATORS / BROKERS IN RESPECT OF VARI OUS LAND ACQUISITIONS MADE BY JAI CORP GROUP ENTITIES. CONSEQUENTLY, NOTICE U/S 153A WAS ISSUED AND DULY SERVED ON THE ASSESSEE, REQUIRING HIM TO FILE THE RETURN OF INCOME WITHIN STIPULATED TIME AND ACCORDINGLY, ASSESSEE FILED THE RETURN DECLARING THE TOT AL INCOME OF RS. NIL. IN THE PROCESS, AO COMPLETED THE ASSESSMENT U/S 143(3) R.W.S 153A OF THE ACT BY MAKING A DISALLOWANCE OF RS. 6,04,352/ - AND ASSESSED THE SAME AMOUNT AS THE TAXABLE INCOME OF THE ASSESSEE INSTEAD OF NIL INCOME RETURNED BY THE ASSESSEE . AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 5. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, NONE APPEARED BEFORE THE CIT (A) AND THE APPEALS WAS HEARD EX - PARTE AND THE ADDITIONS WERE CONFIRMED IN BOTH THE APPEALS. ACCORDINGLY, THE APPEALS WERE DISMISSED AS PER THE DISCUSSIONS GIVEN IN PARA 4 TO 7 OF THE CIT (A)S ORDER IN BOTH THE ASSESSMENT YEARS. CONSIDERING THE SIGNIFICANCE OF THE SAID PARAS 4 TO 7 OF THE CIT (A)S ORDER, THE SAME ARE EXTRA CTED AS UNDER: 4. VARIOUS NOTICES U/S 250 OF THE ACT WERE ISSUED FOR HEARING FROM TIME T TIME AND OPPORTUNITIES WERE GIVEN TO THE APPELLANT. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS NEITHER APPEARED NOR SOUGHT ADJOURNMENTS. THE DETA ILS OF THE NOTICES ISSUED IN THIS REGARD ARE AS UNDER: S.NO. DATE OF NOTICE HEARING FIXED ON REMARKS 1 22.9.2011 3.10.2011 NONE ATTENDED 2 11.10.2011 20.10.2011 NONE ATTENDED 3 14.9.2012 24.9.2012 NONE ATTENDED 4 25.10.2012 1.11.2012 NONE ATTENDED 5 9.11.2012 3.12.2012 NONE ATTENDED 6 17.12.2012 7.1.2013 NONE ATTENDED 7 14.1.2013 22.1.2013 NONE ATTENDED 8 18.3.2013 5.4.2013 NONE ATTENDED 9 29.8.2013 26.9.2013 NONE ATTENDED 5. FROM THE ABOVE CONDUCT OF THE APPELLANT, IT IS CLEAR THAT THE APPELLANT IS APPROACHING THE APPEAL IN VERY CASUAL MANNER AND IS NOT INTERESTED IN PURSUING THE 3 SAME. IN SPITE OF BEING GIVEN OPPORTUNITIES SPANNING A PERIOD OF ALMOST 2 YEARS STARTING FROM OCT OBER, 2011 TO SEPTEMBER 2013 THE APPELLANT HAS FAILED TO APPEAR. THIS SHOWS THAT THE APPELLANT IS ABSOLUTELY INDIFFERENT AND CASUAL TO APPELLATE PROCEEDINGS. 6. SECTION 114(G) OF INDIAN EVIDENCE ACT, 1872 LAYS A PRESUMPTION THAT EVIDENCE WHICH COULD BE AND IS NOT PRODUCED WHEN, IF PRODUCED, BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT. IN THE APPELLATE PROCEEDINGS, BURDEN OF PROOF LIES ON THE ASESSEE TO PROVE THAT FACTS AND FINDINGS OF THE AO ARE INCORRECT. IF THE ASSESSEE RAILS TO DISPROVE OR REBUT WITH COGENT EVIDENCE SUCH FACTS AND FINDINGS, NO INTERFERENCE IS REQUIRED. IN THIS CASE, THE ASSESSEE DID NOT CHOOSE TO AVAIL SEVERAL OPPORTUNITIES IN APPELLATE PROCEEDINGS, WHICH ENTAILS CONCLUSION THAT HE HAD NO EVIDENCE OR SAY OR EXPLANATION AGAINST TH E ORDER OF THE AO. IN CASE OF TAX EVASION, SOMETIMES COMPLIANCE IS MORE DETRIMENTAL THAN NON COMPLIANCE BECAUSE COMPLIANCE CAN LEAD TO MORE INVESTIGATION OR MORE POINTS TO BE EXPLAINED WHEREAS NON COMPLIANCE LEAD TO MERE PENALTY U/S 271(1)(C) AND / OR EX - PARTE DECISION ON THE BASIS OF AVAILABLE MATERIAL ONLY. IT ALSO BRIGHTENS CHANCE AGAINST LEVY OF CONCEALMENT PENALTY. EX - PARTE ASSESSMENT / OTHER ORDER HAS ITS OWN INHERENT LIMITATIONS AS TO ITS SCOPE AND EXTENT. HENCE, THE ASSESSEE SHO U LD NOT BE ALLOWE D TO BE ENRICHED OR BENEFITED UNJUSTLY FOR ACT OF HIS OWN WRONGS, I.E., NON COMPLIANCE OR NON ATTENDANCE OF HEARING. THE HONBLE HIGH COURT OF DELHI HAD DELIVERED A DECISION IN THE CASE OF CIT VS. GOLD LEAF CAPITAL CORPORATION LTD ON 2.9.2011 (ITA NO.798 OF 2009) THAT A NEGLIGENT ASSESSEE SHOULD NOT BE GIVEN MANY OPPORTUNITIES JUST BECAUSE THAT QUANT UM OF AMOUNT INVOLVED IS HIGH/ NECESSARY COURSE OF ACTION IS TO DRAW ADVERSE INFERENCE; OTHERWISE IT WOULD AMOUNT TO GIVE PREMIUM TO THE ASSESSEE FOR HIS NEGLI GENCE. WHEN THE ASSESSEE IS NON - COOPERATIVE, IT CAN NATURALLY BE SAFELY CONCLUDED THAT THE ASSESSEE DID NOT WANT TO ADDUCE EVIDENCE AS IT WOULD EXPOSE FALSITY AND NON GENUINENESS. IN THIS REGARD, THE DECISION OF THE HONBLE HIGH COURT OF MUMBAI IN THE CA SE OF M/S. CHEMIPOL VS. UNION OF INDIA, CENTRAL EXCISE APPEAL NO.62 OF 2009, CLEARLY STATES THAT EVERY COURT JUDICIAL BODY OR AUTHORITY, WHICH HAS A DUTY TO DECIDE A LIS BETWEEN TWO PARTIES, INHERENTLY POSSESSES THE POWER TO DISMISS THE CASE IN DEFAULT. C ONSIDERING THE ABOVE FACTS, THE APPEAL IS LIABLE TO BE DISMISSED. 7. EVEN ON MERITS, THE APPEAL DESERVES TO BE DISMISSED. 5.1. AGGRIEVED WITH THE ABOVE DECISION OF THE CIT (A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROU NDS. 6. DURING THE PROCEEDINGS BEFORE US, DESPITE THE SERVICE OF NOTICES THROUGH RPAD , ASSESSEE FAILED TO APPEAR ON 12.3.2013; 20.5.2015 AND 21.7.2015 . THE SERVICE OF NOTICE IS A VALID ONE AND THE ASSESEE DID NOT COMPLY WITH THE REQUIREMENTS OF THE NOTICE DESPITE THE VALID SERVICES. THE VALIDITY OF THE SERVICE OF THE NOTICE BY SPEED POST IS AFFIRMED BY THE VARIOUS DECISIONS AND THE DECISION OF THE ITAT, MUMBAI IN THE CASE OF COLOR CRAFT VS. ITO (MUM.) IS ONE OF THEM. AFTER HEARING THE LD DR ON THIS ISSU E AS WELL AS CONSIDERING THE UNDISPUTED FACT OF ASSESSEES NON - COOPERATION, WE ARE OF THE OPINION, THAT THE GROUNDS RAISED BY THE ASSESSEE ARE REQUIRED TO BE DISMISSED. ACCORDINGLY, WE DISMISS THE GROUNDS RAISED BY THE ASSESSEE IN BOTH THE APPEALS AND UPH ELD THE ORDER OF THE CIT (A) FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. 4 ORDER PRONOUN CED IN THE OPEN COURT ON 29 TH JULY, 2015. SD/ - SD/ - (AMIT SHUKLA) (D. KARUNAKRA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 29 .7 .2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI