Pravin Kantilal Tathed, Nashik V. ITO, Ward 2(1), Nashik

ITA 979/PUN/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89106 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 06-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Keywords: Unexplained cash credit
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.979/PN/2013 (ASSESSMENT YEAR : 1999-2000) PRAVIN KANTILAL TATHED, LAXMI NAGAR, MARKET YARD, A/P. LASALGAON, TAL. NIPHAD, DIST. NASHIK 422 306. PAN : ACRPT8383J . APPELLANT VS. INCOME TAX OFFICER, WARD- 2(1), NASHIK. . RESPONDENT ASSESSEE BY : NONE DEPARTMENT BY : MR. B. C. MALAKAR DATE OF HEARING : 18-02-2015 DATE OF PRONOUNCEMENT : 31-03-2015 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, NASHIK DATED 04.03.2013 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 22.0 3.2005 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE INCO ME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 1999-2 000. 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL :- 1. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE COMMISSIONER OF INCOME TAX (APPEALS)-II NA SHIK IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.8,914/- ON ACCOUNT OF PROFIT ON A SALE OF FSI IN SUYOJIT SANKUL TO MANOJ CHORDIYA. 2. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND AS PER LAW, THE COMMISSIONER OF INCOME TAX (APPEALS)-II, N ASHIK IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.8,23,000/- ON ACCOUNT OF UNEXPLAINED CAPITAL. 3. AT THE TIME OF HEARING, IT WAS NOTICED THAT NONE APPEARED ON BEHALF OF THE APPELLANT-ASSESSEE AND NEITHER ANY APPLICATION FOR ADJOURNMENT WAS FILED ITA NO.979/PN/2013 IN-SPITE OF THE APPEAL HAVING BEEN ADJOURNED ON THE EARLIER DATE AT THE REQUEST OF THE APPELLANT-ASSESSEE. IN VIEW OF THE AFORESAI D, HAVING REGARD TO THE RULE 24 OF THE APPELLATE TRIBUNAL, 1963, WE HAVE PROCEED ED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE APPELLANT-ASSESSEE AFTER HE ARING THE RESPONDENT/REVENUE ON MERITS. 4. THE APPELLANT IS AN INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS OF COMMISSION AGENT OF VEGETABLES. THIS APPEAL HAS AR ISEN FROM AN ORDER OF THE CIT(A), WHICH HAS BEEN PASSED IN CONSEQUENCE OF THE MATTER HAVING BEEN RESTORED BACK TO HIS FILE BY THE TRIBUNAL VIDE ITS ORDER IN ITA NO.1275/PN/2007 DATED 17.07.2009. 5. IN SO FAR AS THE FIRST GROUND OF APPEAL IS CONCE RNED, IT IS WITH REGARD TO AN ADDITION OF RS.8,914/- MADE ON ACCOUNT OF PROFIT ON SALE OF FSI IN SUYOJIT SANKUL TO MR. MANOJ CHORDIYA. THE ORDER OF THE CIT (A) REVEALS THAT ASSESSEE DID NOT DISPUTE THAT THE PROFIT OF RS.8,914/- WAS E ARNED BY HIM ON ACCOUNT OF SALE OF FSI TO MR. MANOJ CHORDIYA. HOWEVER, THE PO SITION CANVASSED BY THE ASSESSEE WAS THAT SUCH INCOME WAS CONSIDERED WHILE FILING THE ORIGINAL RETURN OF INCOME THOUGH ADMITTEDLY ASSESSEE WAS NOT MAINTA INING ANY BOOKS OF ACCOUNT. THE AFORESAID PLEA OF THE ASSESSEE HAS BE EN DISPOSED-OFF BY THE CIT(A) BY MAKING THE FOLLOWING FACTUAL FINDING :- AS REGARDS ADDITION OF UNDISCLOSED PROFIT OF RS.8, 914/- ON SALE OF FSI, THE APPELLANTS ARGUMENT THAT IT WAS DUE TO THE MISTAKE OF TAX CONSULTANT THAT THE ACCOUNTS WERE NOT PREPARED CORRECTLY IS WITHOUT ANY BASIS. THE APPELLANT WAS A COMMISSION AGENT AND HAD TRANSACTED A COUPLE OF P ROPERTIES DURING THE A.Y. UNDER APPEAL. APPELLANTS CLAIM THAT RS.8,914/- WA S INCLUDED IN THE RETURN OF INCOME WAS ALSO FOUND TO BE FACTUALLY INCORRECT BY AO AS EVIDENT FROM PARA 6.1 OF THE ASSESSMENT ORDER. IN VIEW OF THE ABOVE ADDITION OF RS.8,914/- IS CONFIRMED. 6. BEFORE US, NO MATERIAL IS ON RECORD WHICH WOULD JUSTIFY ANY INTERFERENCE WITH THE AFORESAID FACTUAL FINDINGS ARRIVED AT BY T HE CIT(A). IN THIS CONTEXT, IT IS ITA NO.979/PN/2013 RELEVANT THAT THE ASSESSING OFFICER HAS DISCUSSED T HE ISSUE IN PARA 6.1 OF THE IMPUGNED ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT DATED 22.03.2005. THE FINDING OF THE ASSESSING OFFICER IS ALSO TO THE EFFECT THAT THERE WAS NO MATERIAL TO SUBSTANTIATE ASSESSEES PLEA THAT THE I MPUGNED PROFIT FORMED A PART OF THE RETURN OF INCOME. IN THE ABSENCE OF ANY MAT ERIAL TO THE CONTRARY, THE CONCURRENT FINDING OF FACT RECORDED BY THE LOWER AU THORITIES IS HEREBY AFFIRMED. ACCORDINGLY, ASSESSEE FAILS ON GROUND OF APPEAL NO. 1. 7. THE SECOND GROUND OF APPEAL RAISED BY THE ASSESS EE IS WITH REGARD TO AN ADDITION OF RS.8,23,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CREDIT TO THE CAPITAL ACCOUNT. ON THIS ASPECT ALSO WE FIND THAT THE FACTUAL FINDINGS ARRIVED AT BY THE CIT(A) IN PARA 6 OF HIS ORDER ARE UNASSAILABLE. THE RELEVANT FINDINGS ARE AS UNDER :- AS REGARDS ADDITION OF RS.8,23,000/- ON ACCOUNT OF DIFFERENCE IN CAPITAL ACCOUNT, THE APPELLANT HAS ONCE AGAIN BLAMED HIS IT P FOR PREPARING WRONG STATEMENTS. THE CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE IN VIEW OF THE AO'S OBSERVATION THAT AFTER FILING THE ORIGINAL RET URN OF INCOME BY THE AFORESAID ITP, THE APPELLANT ENGAGED 3 CAS INCLUDING THE PRES ENT ONE (SHRI S.S. MUTHA). DESPITE NOTICE U/S 148 OF THE ACT, THE APPELLANT IN STEAD OF FILING THE CORRECT RETURN OF INCOME CHOSE TO STICK TO HIS ORIGINAL RET URN FILED ON 16/06/1999 AND FILED A BALANCE SHEET AS ON 31/03/2009 SHOWING CAPI TAL OF RS.14,90,000/- AS AGAINST CAPITAL OF RS.4,64,600/- AS ON 31/03/2008. THE APPELLANT HAD SHOWN COST OF HOUSE AT RS.8,23,000/- AS ON 31/03/2008 AND CLAIMED TO HAVE SOLD THE PROPERTY FOR RS.11,85,000/-. INSTEAD OF SHOWING THE GAIN IN CAPITAL ACCOUNT OR CREDITING THE CAPITAL ACCOUNT BY RS.3,62,000/- (RS. 11,85,000/- MINUS RS.8,23,000/-), THE APPELLANT HAS CREDITED THE CAPI TAL ACCOUNT BY RS.11,85,000/-. IN VIEW OF THE ABOVE HE HAS MANIPUL ATED CASH BY RS.8,23,000/- FOR WHICH NO PLAUSIBLE EXPLANATION HA S BEEN GIVEN BY THE APPELLANT. AS MENTIONED ABOVE, APPELLANT'S CONTENTI ON THAT IT WAS DUE TO THE MISTAKE OF ITP IS NOT TENABLE AND HENCE REJECTED. I N VIEW OF THE ABOVE ADDITION OF RS.8,23,000/- IS CONFIRMED. 8. IN VIEW OF THE AFORESAID DISCUSSION AND IN THE A BSENCE OF ANY MATERIAL TO THE CONTRARY, THE ORDER OF THE CIT(A) WHICH IS A LSO IN CONSONANCE WITH THE FINDINGS OF THE ASSESSING OFFICER IS HEREBY SUSTAIN ED. THUS, THE GROUND OF APPEAL NO.2 RAISED BY THE ASSESSEE IS ALSO DISMISSE D. ITA NO.979/PN/2013 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED ON 31 ST MARCH, 2015. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 31 ST MARCH, 2015. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, NASHIK; 4) THE CIT-II, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE