M/s. SUNNY SOUNDS P. LTD., MUMBAI V. ACIT 11(1), MUMBAI

ITSSA 1/MUM/2008

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7430 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 19-11-2014
• Assessment Year: misc
• Appeal Filed On: 17-01-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KUSUM INGALE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER IT(SS)A NO. 01/MUM/2008 BLOCK PERIOD 01-04-1995 TO 08-02-2002 SUNNY SOUNDS P. LTD., SUNNY VILLA, GANDHIGRAM ROAD, JUHU, MUMBAI 400 049. PAN: AACCS 3357M VS. ASST. COMMISSIONER OF INCOME TAX, 11(1), AAYAKAR BHAVAN, MUMBAI-400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. KUSUM INGALE, DR DATE OF HEARING : 07-05-2012 DATE OF PRONOUNCEMENT : 07-05-2012 ORDER PER RAJENDRA, A.M. THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDE R OF THE CIT(A) DT. 24-10-2007 ON THE FOLLOWING GROUNDS: GROUNDS OF APPEAL: THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADD ITION OF ` 55,00,000/- MADE BY THE ASSESSING OFFICER WITHOUT APPRECIATING FULL FACTS AND FOR THE REASONS STATED IN HIS ORDER. THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING T HE ADMITTED FACTS THAT THE ORDER PASSED BY THE ASSESSING OFFICE R WAS WITHOUT ESTABLISHING THAT THE AMOUNT WAS RECEIVED BY THE AP PELLANT AND WAS PURELY BASED ON ASSUMPTION/ESTIMATES IN CASE OF THE PERSON WHOSE PREMISES WERE SEARCHED. IT(SS)A NO. 01/MUM/2008 SUNNY SOUNDS P. LTD., 2 THE LEARNED CIT(A) HAS ERRED IN CONCLUDING THAT TH E APPELLANT HAS NOT REBUTTED THE PRESUMPTION OF LAW BY PROPER E VIDENCE AND HAS INVOKED SECTION 132(4A) OF THE INCOME TAX ACT, 1961. ADDITIONAL GROUNDS OF APPEAL: THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT FOL LOWING THE CONDITIONS PRECEDENT FOR INVOKING THE PROVISIONS OF SECTION 158BD OF THE INCOME TAX ACT, 1961. THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT PRO VIDING TO THE ASSESSEE THE SEIZED PAPER FROM THE THIRD PARTY BASE D ON WHICH HE HAS PROCEEDED TO INITIATE THE PROCEEDINGS U/S. 1 58BD AND THUS THE APPELLANT WAS PREVENTED FROM AND WAS UNABL E TO PROCEED AND ARGUE ON MERIT OF THE CASE AND FURTHER TO PUT FORTH THE SUBMISSION ON SEIZED PAPER THE LEARNED ASSESSING OFFICER HAS ERRED AND HAS PA SSED AN ORDER RELYING ON A PIECE OF PAPER WITHOUT GIVING AN Y DETAILS TO THE APPELLANT AND WITHOUT GIVING APPELLANT AN OPPORTUNI TY TO CROSS EXAMINE AUTHORIZED PERSON OF COMPANY FROM WHOM THE PAPER WAS SEIZED AND HAS THUS PASSED AN ORDER DEVOID OF E QUITY, JUST AND FAIR PLAY. THE LEARNED ASSESSING OFFICER HAS ERRED AND HAS PA SSED AN ORDER WITHOUT EDUCING ANY EVIDENCE TO PROVE THAT MO NEY WAS RECEIVED BY APPELLANT AND WITHOUT CALLING FOR AN EX PLANATION OF APPELLANT FOR THE SAME. 2. ON 01-08-2012, ASSESSEE WAS INFORMED THAT MATTER WILL BE HEARD ON 07-05-2012. BUT, NO ONE APPEARED ON BEHAL F OF ASSESSEE. NOR THERE IS ANY APPLICATION FOR ADJOURNMENT. IN V IEW OF ABOVE, IT APPEARS THAT ASSESSEE IS NOT INTERESTED IN PROSECUT ING THIS APPEAL. HENCE THIS APPEAL OF THE ASSESSEE IS LIABLE TO BE D ISMISSED FOR NON- PROSECUTION. IN THIS REGARD, WE ARE SUPPORTED BY T HE DECISION IN THE CASE OF CIT VS. B.N. BHATTACHARGEE AND ANOTHER, REP ORTED IN 118 ITR 460 (RELEVANT PAGES 477 & 478) WHEREIN THEIR LORDSH IPS HAVE HELD THAT: THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPE AL BUT EFFECTIVELY PURSUING IT. 3. IN THIS REGARD WE ARE ALSO SUPPORTED BY THE DECI SION IN THE CASE OF CIT VS MULTIPLAN INDIA (P) LTD., 38 ITD 320 (DEL ). IT(SS)A NO. 01/MUM/2008 SUNNY SOUNDS P. LTD., 3 4. IN VIEW OF THE ABOVE, AND ALSO CONSIDERING THE P ROVISION OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963, APPEAL OF THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED FOR NON- PROSECUTION. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH MAY 2012. SD/- SD/- (B.R. MITTAL) (RAJENDRA) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI, DATE 07 TH MAY 2012 TNMM COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR J BENCH, ITAT, MUMBAI 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI