SHARIKH S. ANSARI, MUMBAI V. ITO 4(4), THANE

ITA 815/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0428 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 19-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR A K NAYAK
• Section: 143(3); 10; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH , JUDICIAL MEMBER ITA NO S . 814 & 815 /MUM/ 2014 : (A.YS : 2009 - 10 ) SHARIKH S. ANSARI ROOM NO. 305, 3 RD FLOOR, ADNAN MANZIL, V.S. MARG, SIRAJWADI, VIRAR (E) PAN : AKQPA1900R (APPELLANT) VS. ITO - 3(4), THANE (RESPONDENT) ITA NO S . 816 & 817 /MUM/ 2014 : (A.YS : 2009 - 10 ) SHAKIR S. ANSARI ADNAN MANZIL, V.S. MARG, SIRAJWADI, VIRAR (E), THANE - 401 201 PAN : AHPPA5272J (APPELLANT) VS. ITO - 3(4), THANE (RESPONDENT) APPELLANTS BY : NONE RESPONDENT BY : DR. A.K. NAYAK DATE OF HEARING : 19 / 06 /201 7 DATE OF PRONOUNCEMENT : 19 /0 6 /201 7 O R D E R PER G.S. PANNU , AM : THE CAPTIONED ARE FOUR APPEALS PERTAINING TO ASSESSMENT YEAR 2009 - 10 ; TWO BY EACH OF THE ASSESSEES AND SINCE THEY INVOLVE SIMILAR ISSUE S , THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2 SHARIKH S. ANSARI & ANR. ITA NOS. 814 TO 817/MUM/2014 2. AT THE TIME OF HEARING, IT WAS NOTICED THAT INSPITE OF ISSUANCE OF NOTICE, NONE APPEARED ON BEHALF OF THE APPELLANT - ASSESSEES WHILE THE LD. DR APPEARED FOR THE RESPONDENT - REVENUE. NO APPLICATION SEEKING ADJOURNMENT HAS ALSO BEEN MADE ON BEHALF OF THE APPE LLANT - ASSESSEES. IN THIS VIEW OF THE MATTER, FOLLOWING RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, THE APPEAL IS BEING DISPOSED OF EX PARTE QUA THE APPELLANT - ASSESSEE S AFTER HEARING THE LD. DR ON MERITS. 3. WE FIRST TAKE UP APPEALS IN ITA NOS. 814 & 815/MUM/2014 IN THE CASE OF SHARIKH S. ANSARI WHICH ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF CIT(A) SUSTAINING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) OF RS.59,570/ - AND U/ S 271B OF THE ACT AMOUNTING TO RS.27,486/ - . 4. INSOFAR AS THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT IS CONCERNED, THE ASSESSING OFFICER LEVIED THE SAME ON THE GROUND THAT THE ASSESSMENT FINALISED U/S 143(3) OF THE ACT DATED 24.11.2011 RESULTED IN AN ADD ITION OF RS.3,47,844/ - ON ACCOUNT OF UNDISCLOSED PROFIT IN EGG TRADING BUSINESS OF THE ASSESSEE. IN THE PENALTY ORDER, THE ASSESSING OFFICER NOTED THAT CERTAIN UNDECLARED CASH DEPOSITS IN THE SAVINGS BANK ACCOUNT WERE FOUND, WHICH WAS ACCEPTED BY THE ASSE SSEE TO BE PART OF HIS SALES. CONSEQUENTLY, THE ASSESSING OFFICER HAS LEVIED A PENALTY OF RS.59,570/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED ON SUCH ADDITION. THE CIT(A) HAS ALSO AFFIRMED THE PENALTY. 5. IN OUR VIEW, THE FACTUAL MATRIX AS EMERGING FR OM THE ORDER S OF THE AUTHORITIES BELOW , CLEARLY SUGGEST THE FACTUM OF CONCEALMENT OF INCOME 3 SHARIKH S. ANSARI & ANR. ITA NOS. 814 TO 817/MUM/2014 AND, THEREFORE, WE AFFIRM THE ACTION OF INCOME - TAX AUTHORITIES IN LEVYING PENALTY OF RS.59,570/ - U/S 271(1)(C) OF THE ACT. THUS, THE ASSESSEE FAILS ON THIS ASPECT. 6. THE OTHER APPEAL IS FOR LEVY OF PENALTY OF RS.27,486/ - FOR FAILURE OF THE ASSESSEE TO GET HIS ACCOUNTS AUDITED IN TERMS OF SEC. 44AB OF THE ACT . THE ASSESSING OFFICER INVOKED SEC. 271B OF THE ACT NOTICING THAT THE GROSS RECEIPTS OF THE BUSINESS EXC EEDED THE LIMITS PRESCRIBED U/S 44AB OF THE ACT, AND IN THE ABSENCE OF THE REQUISITE AUDIT HAVING BEEN OBTAINED BY THE ASSESSEE, PENALTY OF RS.27,486/ - WAS LEVIED. THE CIT(A) HAS ALSO AFFIRMED THE PENALTY. 7. HAVING PERUSED THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT THE EXPLANATION FURNISHED BY THE ASSESSEE WAS NOT FOUND TO BE BONA FIDE . IT APPEARS THAT THE ASSESSEE EXPLAINED THAT DUE TO CORRUPTED DATA IN THE TALLY SYSTEM, THE CORRECT AMOUNT OF SALES COULD NOT BE DEDUCED. THE ASSESSING OFFICER AS WELL AS THE CIT(A) NOTE D THAT THE SALE PROCEEDS WERE IN THE SHAPE OF DEPOSITS IN THE BANK ACCOUNTS, WHICH WAS CLEARLY IN THE KNOWLEDGE OF THE ASSESSEE AND, THEREFORE, ASSESSEE COULD NOT ESCAPE FROM THE RIGOURS OF SEC. 44AB R.W.S 271B OF THE ACT. WE FIND NO REASON TO INTERFERE WITH THE DECISION OF THE CIT(A) ON THIS ASPECT, WHICH WE HEREBY AFFIRM. THUS, ASSESSEE FAILS ON THIS APPEAL ALSO. 8. RESULTANTLY, INSOFAR AS THE APPEALS IN ITA NO S . 814 & 815/MUM/2014 ARE CONCERNED, THE SAME ARE DISMISSED. 4 SHARIKH S. ANSARI & ANR. ITA NOS. 814 TO 817/MUM/2014 9. THE LD. DR HAD POINTED OUT THAT THE FACTS AND CIRCUMSTANCES IN THE OTHER TWO APPEALS IN THE CASE OF SHAKIR S. ANSARI BEING ITA NOS. 816 & 817/MUM/2014 ARE PARI MATERIA TO THOSE CONSIDERED BY US IN ITA NOS. 814 & 815/MUM/2014, THEREFORE, OUR DECISION THEREI N SHALL APPLY MUTATIS MUTANDIS IN THE SAID APPEAL S ALSO . 10. RESULTANTLY, THE CAPTIONED FOUR APPEALS OF THE ASSESSEES ARE DISMISSED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. DR AT THE CONCLUSION OF HEARING ON 19 TH J UNE, 2017. SD/ - SD/ - ( PAWAN SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 1 9 T H JUNE , 201 7 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, E BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI