Mrs Sharada Shivaji Mane, Pune V. Deputy Commissioner of Income-Tax, Central Circle -1, Aurangabad

MA 295/PUN/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1825 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-05-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 08-11-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 44AD; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B” : PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER M.A.Nos.294 & 295/PUN./2023 Arising out of I.T.(S.S.)A.Nos.102 & 103/PUN./2022 Assessment Years 2015-2016 & 2016-2017 Mrs. Sharada Shivani Mane, Flat No.201, Boston Apartment, Near Royalty Party, Prabhat Road, Gymkhana, Pune - 411 004 Maharashtra. PAN BQQPM8522E vs. The DCIT, Central Circle-1, Aayakar Bhavan, Opp. Holy Cross English High School, Aurangabad. Maharashtra. PIN - 431 002 (Applicant) (Respondent) M.A.Nos.296 & 297/PUN./2023 Arising out of I.T.(S.S.)A.Nos.104 & 105/PUN./2022 Assessment Years 2015-2016 & 2016-2017 Mrs. Shantabai Gundappa Mane, Flat No.601, Boston Apartment, Near Royalty Party, Prabhat Road, Gymkhana, Pune - 411 004 Maharashtra. PAN BJCPM6401P vs. The DCIT, Central Circle-1, Aayakar Bhavan, Opp. Holy Cross English High School, Aurangabad. Maharashtra. PIN - 431 002 (Applicant) (Respondent) For Assessees : Shri Nishit Gandhi For Revenue : Shri Ramnath P Murkunde Date of Hearing : 03.05.2024 Date of Pronouncement : 04.06.2024 2 M.A.Nos.294, 295, 296 & 297/PUN./2023 ORDER PER SATBEER SINGH GODARA, J.M. : These twin assessees’ as many instant miscellaneous applications M.A.Nos.294, 295 & 296, 297/ PUN./2023, in the corresponding main appeals IT(SS)A. Nos.102, 103 & 104, 105/PUN./2022, respectively; filed u/sec.254(2) of the Income Tax Act, 1961 (in short "the Act"); seek to recall/rectify tribunal’s common order dated 16.05.2023, dismissing the same as under : “2. A combined perusal of all these four case files reveals that way back on 10.02.2023, this bench had put both these assessees’ on notice for rejecting their eligibility to be assessed at the presumptive scheme of taxation u/s.44AD of the Act in light of the learned lower authorities’ detailed findings going against them. Learned counsel had quoted this tribunal’s common order in I.T.(S.S.)A.Nos.106 & 107/PUN./ 2022 in alleged connected cases dated 31.01.2023 that no disallowance could be made in an instance wherein an assessee chooses to be assessed u/s.44AD of the Act. We invited learned counsel’s attention to the CIT(A)'s identical lower appellate detailed discussion holding these assessees’ to have failed in proving the actual business activity(ies) carried-out as under : 3 M.A.Nos.294, 295, 296 & 297/PUN./2023 4 M.A.Nos.294, 295, 296 & 297/PUN./2023 5 M.A.Nos.294, 295, 296 & 297/PUN./2023 6 M.A.Nos.294, 295, 296 & 297/PUN./2023 3. The identical common notings in all these case files suggest that learned counsel representing these two assessees’ sought time to prepare the instant cases afresh. Neither the learned counsel has appeared thereafter nor these twin assessees’ have turned-up despite the fact that we have waited for them on 02.03.2023, 09.03.2023, 21.03.2023, 10.04.2023, 27.04.2023, 10.05.2023 and 15.05.2023 i.e., today. It rather emerges that both these assessees’ have preferred to file representations before the hon’ble President, Income-tax Appellate Tribunal and hon’ble Vice President, Income-tax Appellate Tribunal, Pune Zone, Pune seeking to de-hear the instant four appeals by leveling accusations of perversity against us. We strongly deprecate their behavior hereinabove; But at the same time, since there is no reason for us to release the instant case files so as to 7 M.A.Nos.294, 295, 296 & 297/PUN./2023 succumb to “bench-shopping” as per the foregoing observations, we proceed to decide the assessees’ identical substantive grounds pleaded in [I.T.(S.S.)A.No.102/ PUN./2022] these four appeals reading as under : 1. “On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in upholding the assessment order passed by the Ld. A.O. u/s 153C of the Income Tax Act, 1961. The assessment u/s 153C is invalid, bad in law and without jurisdiction. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) had erred by approving the addition/ disallowance made by the Ld. A.O. of Rs. 71,29,920/- inspite of no incremental material found during the course of search from the premises of Manisha Construction Company. 3. The Manisha Construction Company had filed an application before settlement commission u/s 245C of the I.T. Act, 1961 on 05/02/2020 and order for the same was passed u/s 245D(1) of the I. T. Act, 1961 on 13/02/2020 by the settlement commission. The notice issued u/s 153C by the Ld. A.O. is bad in law because as per section 245F all exclusive powers of Ld. A.O. are transferred to settlement commission for issuance of notice and passing the assessment order. Therefore the notice issued u/s 153C and order passed by the Ld. A.O. is bad in law since the jurisdiction lies with settlement commission and not the Ld. A.O. 4. On the facts and circumstances of the case and in law, the Ld. A.O. has erred by taking common approval for all the 8 M.A.Nos.294, 295, 296 & 297/PUN./2023 years i.e. A.Y. 2013-14 to A.Y. 2018- 19 which is in violation of provisions of section 153D. 5. On the facts and circumstances of the case and in law the Ld. A.O. has erred by recording common satisfaction note for all the years i.e. AY 2013-14 to A.Y. 2018-19. 6. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in upholding the addition/ disallowance made by the Ld. A.O. of Rs.71,29,920/- being expenditure claimed u/s.44AD of the Income Tax Act 1961, without considering the facts of the case. 7. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not following the provision of section 44AD of the Act since the section is presumptive section and appellant is not required to maintain books of account and it is presumed to have made expenses of 80% of the income received (20% profit shown by assessee u/s 44AD). 8. On facts and circumstances of the case the Ld. CIT(A) has not considered the submission filed on record at all and had proceeded with preset minds of making addition. 9. The appellant craves leave to add, alter, amend or modify any or all grounds till the disposal of the Appeal.” 4. We make it clear that learned counsel representing the assessees’ had not pressed the assessees’ ground nos. 1 to 5 and 8 to 9 during the course of hearing way back on 10.02.2023. The only distinction in all these cases is that of the amount of expenditure sum(s). So far as his arguments that this tribunal has already deleted similar expenditure disallowance in an instance involving sec.44AD presumptive 9 M.A.Nos.294, 295, 296 & 297/PUN./2023 scheme of assessment, we make it clear that there is no material or evidence filed before us in any of these four case files resulting CIT(A)'s detailed discussion holding the assessees as not to have carried-out any business activity or sub-contract works in the impugned assessment years. We are thus constrained to observe that this tribunal finds no reason to reverse the learned lower authorities action seriously doubting the assessees’ action seeking to avail the presumptive scheme taxation benefit u/s.44AD of the Act. Faced with the situation, we adopt stricter construction in light of Commissioner of Customs vs. Dilip Kumar [2018] 9 SCC 1 (SC) (FB) to hold that these assessees’ have been rightly denied the benefit of impugned beneficial scheme of taxation in the given facts and circumstances of the case. We accordingly reject their sole substantive arguments in all these four appeals challenging expenditure disallowance of Rs.71,29,920/-; Rs.73,98,240/- and Rs.68,08,960/-; Rs.67,34,000/-, case-wise, respectively. The CIT(A)’s lower appellate findings in all these four cases stand upheld. 5. These twin assessees’ as many appeals I.T.(S.S.)A.Nos.102 & 103/PUN./2022 and I.T.(S.S.)A.Nos.104 & 105/PUN./2022 are accordingly dismissed in above terms. A copy of this common order be placed in the respective case files.” 2. Both the learned representatives reiterated their respective stands during the course of hearing of the instant miscellaneous applications on 03.05.2024. Learned counsel representing the assessee has further taken pains to file a brief synopsis of the assessee’s identical grievances raised herein reading as under : 10 M.A.Nos.294, 295, 296 & 297/PUN./2023 11 M.A.Nos.294, 295, 296 & 297/PUN./2023 12 M.A.Nos.294, 295, 296 & 297/PUN./2023 3. Learned counsel reiterated the assessees’ stand that they were prevented from circumstances beyond their control in the first round of the foregoing main appeal hearing(s) and therefore, we ought to recall our impugned order. A common perusal of the instant main appeal files reveals that the earlier bench had afforded various opportunities to these assessees’ on 10.02.2023, 02.03.2023, 09.03.2023, 21.03.2023, 10.04.2023, 27.04.2023 and 10.05.2023 before taking note of all the circumstances as they existed at that point of time to dismiss them. Our impugned orders had duly considered these assessees’ “vanishing” act post-facto 10.02.2023 to proceed ex-parte against them. We, thus reject the assessee’s instant first and foremost arguments citing various reasons beyond their control. 4. The assessees’ next common submission is that they had to appoint new counsel as well and therefore, they have been denied fair opportunity of hearing. These arguments inspire any confidence once it has come on record that the main appeals herein had afforded numerous opportunities to both these taxpayers’ in foregoing terms. 5. Learned counsel next harped on the fact that our impugned order reproduced hereinabove hasneither considered nor decided assessees’ identical grounds 1 to 5 and 8 going to root of the matter. We reiterate in light of para-4 of 13 M.A.Nos.294, 295, 296 & 297/PUN./2023 our impugned order that the same had not been pressed at that point of time. Coupled with this, the assessees’ have nowhere placed on record the relevant sec.153C satisfaction or sec.153D approval or sec.245C proceedings, as the case may be, till date in support of the said legal ground(s) which could lead us to a different conclusion. We thus treat the assessees’ instant applications as a mere ploy to get our order recalled on flimsy arguments. 6. Learned counsel’s main thrust of arguments derives force from both the lower authorities respective findings wherein it is claimed that facts of these cases are identical as in appeals pertaining to their relatives Mrs. Archana Manoj Mane and Mrs. Kshitija Mane (supra). We wish to reiterate here that our impugned common order has already drawn a distinction vis-à-vis the foregoing cases by holding that these appeals have failed to satisfy the necessary conditions u/sec.44AD of the Act (supra). We wish to make it clear that that law is very well settled about the ambit and scope of sec.254(2) rectification proceedings in light of hon’ble apex court’s decision(s) in the case(s) of ACIT vs. Saurashtra Kutch Stock Exchange Ltd., [2008] 305 ITR 227 (SC); CIT vs. Reliance Telecom Ltd., [2021] 133 taxmann.com 41 (SC); and CIT vs. Ramesh Electric & Trading Co. [1993] 203 ITR 497 (Bom.) that the same are only to deal with mistakes apparent 14 M.A.Nos.294, 295, 296 & 297/PUN./2023 on record than those involving roving enquiries at length. We accordingly hold that these twin assessees’ as many instant miscellaneous applications M.A.Nos.294, 295 & 296, 297/ PUN./2023 are devoid of merits. The same are dismissed in very terms. A copy of this common order be placed in the respective case files. Ordered accordingly. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 04 th June, 2023 VBP/- Copy to 1. The appellant 2. The respondent 3. The Ld. CIT(A), Pune-12 Pune. 4. The Pr. CIT (Central), Nagpur. 5. D.R. ITAT, Pune “B” Bench, Pune 6. Guard File. //By Order// //True Copy// Sr. Private Secretary, ITAT, Pune Benches, Pune.