SURESHCHANDRA R. UPADHYAYA, V. ITO 24(2)(2),

MA 291/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4574 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 14-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HITESH M SHAH
• Keywords: Business income
• Section: 44AD; 37(1); 201(1); 263

Judgement Text

1 MA NO. 291/MUM/2015 (A.Y. 2007 - 08) SURESHCHANDRA R. UPADHYAYA VS. ITO IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI SANJAY ARORA, A M AND SHRI AMIT SHUKLA, JM . / MA NO. 291/MUM/2015 (ARISING OUT OF ITA NO. 8535/MUM/2011 ) ( / ASSESSMENT YEAR: 2007 - 08 ) SURESHCHANDRA R. UPADHYAYA A - 216, MALAD HIGHWAY VIEW CHS LTD. NEAR SHANTARAM TALAO, MALAD (E), MUMBAI - 400 097 / VS. ITO 24(2)(2)/30(2)(2), C - 11, PRATYAKSHAKAR BHAVAN, BKC, BANDRA (E), MUMBAI - 400 051 ./ ./ PAN/GIR NO. AAIPU 1987 G ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI HITESH M. SHAH RESPONDENT BY : SHRI ANIL KUMAR DAS / DATE OF HEARING : 22.4.2016 / DATE OF PRONOUNCEMENT : 2 4 .6.2016 / O R D E R PER SANJAY ARORA, A. M.: THE PRESENT MISCELLANEOUS PETITION BY THE ASSESSEE ARISES OUT OF THE ORDER BY THE TRIBUNAL U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HERE - IN - AFTER) DATED 09.01.2013, DISPOSING THE ASSESSEES APPEAL AGAINST ORDER U/S. 263 PASSED IN HIS CASE FOR A.Y . 2007 - 08 ON 09.11.2011. 2. 1 THE ISSUE INVOLVED IN THE INSTANT CASE IS THE DISALLOWANCE U/S. 40(A)(IA) OF THE ACT, WHICH WAS UPHELD BY THE TRIBUNAL, RESTRICTING IT THOUGH TO 98% OF THE IMPUGNED SUM OF RS. 7,85,001/ - IN - AS - MUCH AS 2% THEREOF STOOD ALREAD Y DISALLOWED BY THE ASSESSING OFFICER U/S. 37(1) OF THE ACT. SURELY, THERE COULD BE, IT OPINED, NO DOUBLE DISALLOWANCE AND, FURTHER, ONLY AN AMOUNT ELIGIBLE FOR BEING ALLOWED (AS DEDUCTION IN COMPUTING BUSINESS INCOME) COULD POSSIBLY BE DISALLOWED 2 MA NO. 291/MUM/2015 (A.Y. 2007 - 08) SURESHCHANDRA R. UPADHYAYA VS. ITO U/S. 40 (A)(IA) OF THE ACT, I.E., UNDER THE CIRCUMSTANCE OF THE CONDITION/S OF THE PROVISION BEING ATTRACTED. THE ASSESSEES APPEAL WAS ACCORDINGLY PARTLY ALLOWED BY THE TRIBUNAL. THE ASSESSEE - INDIVIDUAL IS A LABOUR CONTRACTOR FOR MAHANAGAR TELEPHONE NIGAM LIMITE D (MTNL), AND THE IMPUGN ED SUM COMPRISES PAYMENT OF RS. 5,47,886/ - AS CABLE LAYING EXPENSES (TO ONE MR. PARMANAND YADAV) AND RS. 2,37,115 / - AS DEPARTMENT WORK EXPENSES (TO M/S. ANAND ENTERPRISES). 2.2 THE ASSESSEE HAS NOW MOVED AN APPLICATION U/S. 254(2), STATING THAT HE HAS BY RIGOROUS EFFORTS BEEN ABLE TO LOCATE MR. PARMANAND YADAV, WHO HAD SHIFTED TO HIS NATIVE PLACE. MR. YADAV HAD FILED HIS RETURN FOR THE RELEVANT YEAR WITH ITO - 25(3)(3), MUMBAI ON 31.10.2007, RETURNING AN INCOME OF RS. 3,65,906/ - (ON A GROSS RECEIPT OF RS. 54.75 LAKHS). THE ASSESSEE COULD NOT THEREFORE BE CONSIDERED AS IN DEFAULT IN VIEW OF THE AMENDED PROVISION OF SECTION 201(1) (BY FINANCE ACT, 2012 W.E.F. 1.7.2012), SO THAT THE PROVISIONS OF SECTION 40(A)(IA) WOULD NOT APPLY. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. WE ARE, WITH RESPECT, UNABLE TO SEE AS TO HOW AN ARGUMENT OF THE LIKE RAISED, WHICH WAS NOT RAISED BEFORE THE TRIBUNAL AT THE TIME OF HEARING THE INSTANT APPEAL, COULD NOW BE RAISED. THE SAME I N FACT COULD NOT HAVE BEEN RAISED IN - AS - MUCH AS IT IS ONLY THE BASIS OF THE FACTS FOUND AND UNEARTHED SUBSEQUENTLY THAT THE ASSESSEE RAISES THE SAME. IN OTHER WORDS, THERE IS NO POSSIBILITY OF HAVING RAISED THE SAID ARGUMENT - WHICH ADMITTEDLY HAD NOT BEEN RAISED - BEING NOT RAISED ON THE BASIS OF THE MATERIAL ON RECORD OR THE RESPECTIVE CASES OF THE PARTIES. WHY, AS NOTED BY THE TRIBUNAL, AND ON MORE THAN ONE OCCASION, THE ASSESSEE ADMITTED TO BEING UNABLE TO FURNISH THE RELEVANT RECORD EVEN IN RESPECT OF ITS CLAIM FOR EXPENDITURE, AGREEING TO THE DISALLOWANCE BEFORE THE REVENUE AUTHORITIES. THERE COULD FURTHER BE IN FACT EVEN AN ISSUE WITH REFERENCE TO THE APPLICABILITY OF THE AMENDED PROVISION, I.E., TO THE ORDERS PASSED OR ASSESSMENTS COMPLETED PRIOR TO THE DATE OF THE AMENDMENT. FOR THE SAME REASON, WE LIKE - WISE FIND NO REASON TO CONSIDER THE ASSESSEES ARGUMENT, RAISED ORALLY BEFORE US IN THE INSTANT PROCEEDINGS BY THE LD. AR, OF SECTION 40(A)(IA) OF THE ACT BEING NOT APPLICABLE IN VIEW OF THE ASSESSEE , A 3 MA NO. 291/MUM/2015 (A.Y. 2007 - 08) SURESHCHANDRA R. UPADHYAYA VS. ITO CONTRACTOR, WHOSE INCOME IS LIABLE TO BE DETERMINED ON PRESUMPTIVE BASIS U/S. 44AD OF THE ACT. THE SAID PROVISION, WE MAY BY WAY OF ABUNDANT CAUTION, CLARIFY, HAS NOT BEEN APPLIED IN THE INSTANT CASE. THE TRIBUNAL HAS IN DISPOSING THE ASSESSEES APPEAL CONTESTING THE ORDER U/S. 263, CONSIDERED THE ASSESSEES CASE, INCLUDING QUA ASSUMPTION OF JURISDICTION U/S. 263, FINDING THE SAME AS NOT VALID. NO CONTENTION AS REGARDS ANY ARGUMENT OR MATERIAL ON RECORD HAVING NOT BEEN CONSIDERED, CAUSING PREJUDICE TO T HE ASSESSEE, STANDS RAISED BEFORE US. UNDER THE CIRCUMSTANCES, THE ASSESSEES INSTANT APPLICATION IS TO OUR MIND MISCONCEIVED AND TANTAMOUNT TO EXTENDING THE SCOPE OF S. 254(2), WHICH PRECLUDES REVIEW. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 2 4 , 2016 S D / - S D / - ( AMIT SHUKLA ) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 2 4 .06.2016 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI