A.M. Supliers (P) Ltd., Surat V. The Income tax Officer,Ward-1(1), Surat

MA 269/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6307 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 23-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' BEFORE SHRI BHAVNESH SAINI,JM & SHRI A N PAHUJA,AM M A NO.269/AHD/2010 [IN ITA NO.2398/AHD/2010 (ASSESSMENT YEAR:-2006-07) M/S A M SUPPLIERS PVT. LTD., C/O K KIRAN & CO., 235-236, SHANKHESHWAR COMPLEX, OPP. RAYMOND SHOW ROOM, KAILASHNAGAR SAGRAMPURA, SURAT V/S THE INCOME-TAX OFFICER, WARD-1(1), SURAT PAN: AADCA 3136 B [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] ASSESSEE BY :- NONE [WRITTEN SUBMISSIONS] REVENUE BY:- SHRI K MADHUSUDAN, DR O R D E R A N PAHUJA: THIS MISC. APPLICATION[MA] HAS BEEN FILED ON 23.1 2.2010 AGAINST AN EXPARTE ORDER DATED 19-11-2010 OF THE TRIBUNAL I N ITA NO.2398/AHD/2010, DISMISSING THE APPEAL OF THE ASSESSEE . 2. IN THEIR MISCELLANEOUS APPLICATION, THE ASSESSE E SUBMITTED AS UNDER:- 1 THE ORDER DATED 19-11-2010 WAS PASSED BY HONBL E ITAT BENCH-A AND WAS RECEIVED ON 06-12-2010 WHEREIN THE APPEAL W AS DISMISSED ON THE GROUND THAT THE APPELLANT IS NOT INTERESTED IN PURS ING THE APPEAL. 2 THE AR OF THE APPELLANT WAS UNDER BONAFIDE IMPRE SSION THAT THE APPEAL FILED IN FY 2010-11 IS NOT TAKEN UP AND, THE REFORE, THE SUBMISSION WAS NOT MADE. IN ANY CASE, THE APPELLANT IS HIGHLY INTERESTED IN THE APPEAL. 3 THE APPELLANT URGES THAT, THE DEFAULT MAY BE TAK EN AS TECHNICAL ONE AND FOR REASONABLE CAUSE AND HENCE THE APPEAL MAY P LEASE BE RESTORED. 4 THE APPELLANT ALSO FILES HEREON THE WRITTEN SUBM ISSION AND URGES THAT THE APPEAL MAY BE DISPOSED OFF ON THE BASIS OF THE SAME. MA N O.269/AHD/2010 2 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MA WAS TAKEN UP FOR HEARING. INSTEAD WRITTEN SUBMISSIONS H AVE BEEN FILED BEFORE US, WHICH READ AS UNDER:- FACTS OF THE CASE : THE APPELLANT HAD FILED RETURN OF INCOME SHOWING TA XABLE INCOME @ RS.1,95,876/-. THE APPELLANT IS ENGAGED IN THE BUSINESS OF TRADING OF TILES AND SANITARY WARE ETC. DURING THE ASSESSMENT PROCEEDINGS, THE LEARNED INCOME TAX OFFI CER MADE ADDITION ON ACCOUNT OF FOLLOWING ISSUES. A) RS.54,075/- ON ACCOUNT OF DIFFERENCE IN PURCHASE AS PER THE VAT RETURN AS WELL AS THE COPIES OF ACCOUNTS. B) RS.53,591/-ON ACCOUNT OF VALUATION OF CLOSING ST OCK. THE APPELLANT HAD FILED AN APPEAL BEFORE THE HON'BL E CIT (A) AND THE SAME WAS DISMISSED. SO FAR AS PENALTY PROCE EDINGS ARE CONCERNED, THE APPELLANT HAD FILED AN EXPLANATI ON ON 16.03.2010. THE LEARNED INCOME-TAX OFFICER LEVIED P ENALTY OF RS.36,240/- FOR FURNISHING INACCURATE PARTICULARS O F INCOME U/S. 271(1)(C) OF THE ACT. THE LEARNED CIT (A) CONFIRMED PENALTY OF RS.18,202/- OUT OF RS.36,240/- ON ISSUE OF ADDITION ON ACCOUNT OF DIFFERENCE IN PURCHASE OF RS.54,0757-. SUBMISSION 1) THE LEARNED CIT (A) ERRED IN CONFIRMING PENALTY OF RS.18,202/- OUT OF RS.36,240/- U/S. 271(1)(C) OF TH E ACT. 2) THE APPELLANT STRONGLY URGES THAT THE FIGURES OF PURCHASE AS PER VAT RETURN OUGHT NOT TO THE FULLY RELIED UPO N AS THERE ARE SOME ADJUSTMENTS AS PER THE PROVISIONS OF THE VAT ACT AND THERE IS LIKELY TO BE SOME DUPLICATION OR CLERICAL MISTAKE IN TAKING THE FIGURES OF PURCHASE AND SALES AS PER THE REGISTER. THE APPELLANT STRONGLY U RGES THAT THE MISTAKE IN THE ACCOUNT ARE LOOKED .INTO AT THE TIME OF FINALIZATION OF ACCOUNTS AND THERE IS SOME DIFFERENCE HERE AND THERE IN THE PURCHASE AND SALES IN THE VAT AND AS PER ACCOUNTS. THE APPELLANT STRONGLY URGES THAT HE HAD FURNISHED THE VAT ORDER WHICH WAS PASSED AFTER THE ASSESSMENT ORDER AND REQUESTED FOR MA N O.269/AHD/2010 3 RECTIFICATION ALSO BECAUSE THE FIGURES OF PURCHASE AND SALES AS PER THE VAT RETURN AND AS PER THE ACCOUNTS FINALLY TALLIED. THE APPELLANT, THEREFORE, URGES TH AT THERE IS NO QUESTION OF LEVYING PENALTY ON SUCH DISPUTED ADDITIONS. 3) THE APPELLANT HAD ALSO FILED AN APPLICATION FOR RECTIFICATION U/S. 154 OF THE ACT AFTER THE ASSESSM ENT ORDER WAS OVER ON THE BASE OF COPY OF VAT ORDER. TH E SAME IS STILL NOT DISPOSED OFF. 4) THE APPELLANT, THEREFORE, URGES THAT THE ADDITIO N ITSELF WAS UNJUSTIFIED, THE EXPLANATION FILED WAS NOT FOUN D TO BE INCORRECT AND, THEREFORE, MERE ADDITION DOES NOT TANTAMOUNT TO CONCEALMENT OF INCOME. THE APPELLANT RELIES ON CERTAIN JUDICIAL PRONOUNCEMENTS AS UNDER. 01.(A) THE PENALTY PROCEEDINGS ARE NOT AUTOMATIC. LEVY OF PENALTY IS NOT MATTER OF COURSE. CIT V/S. DHOOLI TEA CO. (1998) 231 ITR 65 (CAL) CIT V/S. AGGRAWAL PIPE CO. (1998) 240 ITR 880 (DELHI) (B) PENALTY PROCEEDINGS ARE NOT MATTERS OF ROUTINE. CIT V/S. INDEN BISLERS (1999) 240 ITR 943 (MAD) CIT V/S. G. R. RAJENDRA (2003) 259 ITR 109 (MAD) 02. PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT F ROM THE ASSESSMENT PROCEEDINGS. CIT V/S. GURUDAYALRAM MUTHLAL (1991) 190 ITR 39 (GUJ) ANANTRAM VEERASINGHNIA V/S. CIT 123 ITR 457 (SC) MA N O.269/AHD/2010 4 03. THE FACT THAT THE EXPLANATION TENDERED IN ASSES SMENT WERE FINALLY REJECTED WILL NOT GENERALLY CONSTITUTE AN ACT OR FRAUD OR GROSS OR WILLFUL NEGLIGENCE. CIT VS. GAURISHANKAR SURESH PRASAD 224 ITR 27 (PAT. ) BURMA SHELL OIL STORAGE & DISTRIBUTORS OF INDIA CO. V/S. ITO 112 ITR 592 (CAL) CIT VS. RAMSWAMI NAIDU 208 ITR 377 (MAD) 3.1. THE LD. DR APPEARING BEFORE US CONTENDED THAT THE ASSESSEE HAS NOT ADDUCED ANY REASONS AS TO WHY THE Y COULD NOT APPEAR IN THE HEARING OF THE APPEAL ON 19.11.2010 NOR ANY REQUEST FOR ADJOURNMENT WAS FILED. IN THE ABSENCE OF ANY RE ASONS, APPEAL SHOULD NOT BE RESTORED AS PLEADED IN THE MA, THE LD . DR ARGUED. 4. AFTER HEARING THE LD. DR AND CONSIDERING THE FACTS OF THE CASE, WE FIND THAT NEITHER IN THE MA NOR IN THEIR WRITT EN SUBMISSIONS, THE ASSESSEE MADE EVEN A WHISPER AS TO WHAT WAS THE CAU SE MUCH LESS ANY REASONABLE CAUSE FOR NOT APPEARING ON 19.11.2 010 ,WHEN THE APPEAL WAS TAKEN UP FOR HEARING. THERE IS NO MATERI AL BEFORE US, SUGGESTING THAT THE ASSESSEE WAS UNDER ANY BONAFI DE IMPRESSION AS MENTIONED IN PARA 2 OF THE MA THAT APPEAL WOULD NOT BE TAKEN UP FOR HEARING. IN THESE CIRCUMSTANCES, ESPECIALLY WHE N NO REASONABLE CAUSE HAS BEEN GIVEN FOR THE ASSESSEE'S FAILURE T O APPEAR BEFORE THE ITAT ON THE DATE OF HEARING, APPEAL OF THE ASSE SSEE CAN NOT BE RESTORED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF R. 24 OF THE ITAT RULES, 1963, AND THAT TOO ONLY IN CASES WHERE THE A SSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN TH E APPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE. IN THE ABSENCE OF ANY REASONA BLE CAUSE, WE DO NOT FIND ANY MERIT IN THE MA FILED BY THE ASSESSEE. MA N O.269/AHD/2010 5 6. IN VIEW OF THE FOREGOING, THE MA IS REJECTED ORDER PRONOUNCED IN THE COURT TODAY ON 6 -05-2011 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATED : 6-05-2011 COPY OF THE ORDER FORWARDED TO: 1. M/S A M SUPPLIERS PVT. LTD., C/O K KIRAN & CO., 235-236, SHANKHESHWAR COMPLEX, OPP. RAYMOND SHOW ROOM, KAILASHNAGAR SAGRAMPURA, SURAT-395002 2. ITO, WARD-1(1), SURAT 3. CIT CONCERNED 4. CIT(A)-I, SURAT 5. DR, ITAT, AHMEDABAD BENCH-A, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD