KARMAKSHETRA BUILDERS P. LTD, MUMBAI v. ACIT 1(2), MUMBAI

ITA 1406/MUM/2010 | 2001-2002
Pronouncement Date: 08-12-2010 | Result: Allowed

Appeal Details

RSA Number 140619914 RSA 2010
Assessee PAN AAACK6362J
Bench Mumbai
Appeal Number ITA 1406/MUM/2010
Duration Of Justice 9 month(s) 18 day(s)
Appellant KARMAKSHETRA BUILDERS P. LTD, MUMBAI
Respondent ACIT 1(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 08-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 08-12-2010
Assessment Year 2001-2002
Appeal Filed On 19-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G MUMBAI BEFORE SHRI R. S. PADVEKAR J. M. AND SHRI R. K. PA NDA A.M. I.T.A. NO.1406/MUM/2010 ASSESSMENT YEAR : 2001-02 M/S. KARMAKSHETRA BUILDERS P. LTD. 21 WOUDBY ROAD HAJARIMAL SOMANY MARG OPP. BOMBAY GYMKHANA BDA TRUST COMPOUND FORT MUMBAI-400 001. PAN NO: AAACK6362J ASSISTANT COMMISSIONER OF INCOME TAX 1 (2) AAYAKAR BHAVAN M.K. ROAD MUMBAI (APPELLANT) VS. (RESPONDENT) ORDER PER R. K. PANDA (AM) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER DATED 26.11.2009 OF COMMISSIONER OF INCOME TAX (APPEALS)- 2 MUMBAI AND RELATES TO THE ASSESSMENT YEAR 2001-02. 2) THE ASSESSEE IN ITS GROUNDS OF APPEAL HAS CHALL ENGED THE ORDER OF THE CIT(APPEALS) IN PASSING THE EXPARTE ORDER AND THEREBY CONFIRMING THE VARIOUS ADDITIONS MADE BY THE AO AMOUNTING TO RS.54 73 738/ -. 3) FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND AS PROMOTERS AND B UILDERS. THE ASSESSEE FILED ITS APPELLANT BY : SHRI RAJAN VORA & SHRI MANOJ ANCHALIA RESPONDENT BY : SHRI SHRAVAN KUMAR 2 RETURN OF INCOME DECLARING TOTAL INCOME AT RS.11 55 560/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO CALLED FOR VARIOUS D ETAILS. DESPITE PROPER OPPORTUNITIES GIVEN BY THE AO THE ASSESSEE FAILED TO COMPLY WITH THE REQUIREMENTS AND DID NOT FURNISH FULL DETAILS FOR WHICH THE AO MADE THE FOLLOWING ADDITIONS:- A) DISALLOWANCE OF INTEREST RS.17 67 356/- B) DISALLOWANCE ON ACCOUNT OF MATERIALS RS.23 78 6 22/- C) INCOME FROM UNDISCLOSED SOURCES RS.13 76 760/- 4) THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT (APPEALS) AND DUE TO NONE APPEARANCE BEFORE HIM THE CIT(APPEALS) DECIDE D THE APPEAL EXPARTE AND SUSTAINED THE ADDITIONS MADE BY THE AO. THE ASSESSE E PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 28. 02.2006 RESTORED THE MATTER BACK TO THE FILE OF THE CIT (APPEALS) WITH THE DIRECTION TO DECIDE THE ISSUES AFRESH AFTER ALLOWING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 5) SUBSEQUENTLY THE CIT (APPEALS) ISSUED NOTICE B Y FIXING THE DATE OF HEARING ON 16.02.2009. THE ASSESSEE FILED AN ADJOUR NMENT PETITION SEEKING ADJOURNMENT OF THE CASE BY ONE MONTH ON THE GROUND THAT THEIR CONSULTANT SHRI. PRAVIN SARVAIYA WHO IS REPRESENTING THE CASE IS B USY APPEARING BEFORE THE HONBLE SETTLEMENT COMMISSION. SUBSEQUENTLY ANOTHE R NOTICE WAS ISSUED WHICH WAS RETURNED BACK BY THE POSTAL AUTHORITIES WITH TH E REMARK LEFT. SUBSEQUENT NOTICES WERE ALSO RETURNED BACK BY THE POSTAL AUTHO RITIES. THEREAFTER EFFORTS WERE MADE TO LOCATE THE NEW ADDRESS OF THE ASSESSEE AND ANOTHER NOTICE WAS ISSUED FIXING THE DATE OF HEARING ON 24.11.2009 WHICH WAS DULY SERVED ON THE ASSESSEE. THE ASSESSEE AGAIN FILED AN ADJOURNMENT PETITION SE EKING ADJOURNMENT OF THE CASE BY 15 TO 20 DAYS ON THE GROUND THAT THE CONSULTANT OF THE ASSESSEE IS OUT OF TOWN FOR REPRESENTING INCOME-TAX MATTERS. 3 6) DUE TO THIS NONE APPEARANCE ATTITUDE BY THE ASS ESSEE BEFORE HIM AND CONSIDERING HIS PAST CONDUCT BEFORE THE ASSESSING O FFICER AS WELL AS THE PREVIOUS CIT(APPEALS) THE CIT(APPEALS) WAS OF THE OPINION T HAT THE ASSESSEE IS TRYING TO DELAY THE PROCEEDINGS FOR WHATEVER REASONS BEST KNO WN TO THEM. HE FURTHER HELD THAT AS DIRECTED BY THE ITAT SUFFICIENT OPPORTUNIT Y HAS BEEN GIVEN TO THE ASSESSEE. THEREFORE HE HELD THAT NO FURTHER OPPORTUNITIES NE ED TO BE GRANTED AND HE PROCEEDED TO DECIDE THE ISSUE ON MERIT. HE HELD THA T HIS PREDECESSOR CIT(APPEALS) HAD ALREADY DECIDED THE ISSUE BEFORE HIM COVERING A LL THE GROUNDS OF APPEAL AND HE HAS DECIDED THE ISSUE ON MERIT AFTER TAKING INTO AC COUNT THE FACTS AVAILABLE BEFORE HIM. THERE IS NO CHANGE IN THE SITUATION SINCE THEN AS FAR AS AVAILABILITY OF FACTS AND ARGUMENTS ON ISSUES AND GROUNDS OF APPEAL ARE CONCE RNED. HE THEREFORE WAS OF THE OPINION THAT THERE IS NO REASON TO DEVIATE FROM THE DECISION OF HIS PREDECESSOR IN RESPECT OF ALL THESE GROUNDS. HE ACCORDINGLY UPHEL D THE ADDITIONS MADE BY THE AO. 6.1) AGGRIEVED WITH SUCH ORDER OF THE CIT(APPEALS) THE ASSESSEE IS IN APPEAL BEFORE US. 7) THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(APPEALS) IN THE IMPUGNED CASE HAD PASSED THE ORDER ON 26.11. 2009 WHICH WAS RECEIVED BY THE ASSESSEE ON 25.12.2009. HOWEVER THE ASSESSEE H AD FILED A PAPER BOOK ON 18.12.2009. THE LEARNED COUNSEL FOR THE ASSESSEE RE FERRED TO THE AFFIDAVIT FILED BY THE ASSESSEE AS WELL AS THAT OF THE CONSULTANT CHAR TERED ACCOUNTANT SHRI. PRAVIN SARVAIYA AND EXPLAINED THE REASONS FOR NONE APPEARA NCE BEFORE THE CIT(APPEALS). THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE INTEREST OF JUSTICE ONE MORE OPPORTUNITY MAY KINDLY BE GIVEN TO THE ASSESSE E AND HE UNDERTOOK ON BEHALF OF THE ASSESSEE THAT THERE WOULD BE APPEARANCE BEFO RE THE CIT(APPEALS) THIS TIME. 4 8) THE LEARNED DR ON THE OTHER HAND WHILE RELYING ON THE ORDER OF THE CIT(APPEALS) SUBMITTED THAT ENOUGH OPPORTUNITIES HA VE BEEN GIVEN BY THE CIT(APPEALS) AND THE TRIBUNAL AND THEREFORE THE ASSESSEE DOES NOT DESERVE ANY LENIENCY. HE SUBMITTED THAT THE ASSESSEE IS DELIBER ATELY NOT COMPLYING WITH THE VARIOUS NOTICES ISSUED BY THE REVENUE AUTHORITIES O N SOME PRETEXT OR OTHER. THEREFORE THE ORDER OF THE CIT(APPEALS) SHOULD BE UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 9) WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE B Y BOTH THE SIDES PERUSED THE ORDERS OF THE AO AND THE CIT(APPEALS) A ND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. FROM THE CONDUCT OF THE ASS ESSEE WE FIND THE ASSESSEE DOES NOT DESERVE ANY LENIENCY SINCE NEITHER BEFORE THE AO NOR BEFORE THE PREVIOUS CIT(APPEALS) THE ASSESSEE CARED TO APPEAR AND FILE THE NECESSARY DETAILS. WE FIND DESPITE OPPORTUNITIES GIVEN BY THE TRIBUNAL BY REST ORING THE MATTER BACK TO THE FILE OF THE CIT(APPEALS) WITH A DIRECTION TO DECIDE THE ISSUE AFRESH THE ASSESSEE TOOK ADJOURNMENTS UNDER SOME PRETEXT OTHER. THIS TYPE OF ATTITUDE BY THE ASSESSEE IS NOT AT ALL DESIRABLE SINCE IT AMOUNTS TO A MOCKERY OF T HE SYSTEM. HOWEVER CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND TAKING A LIBERAL VIEW ON ACCOUNT OF NATURAL JUSTICE WE GIVE ONE LAST OPPORTUNITY TO THE ASSESS EE TO APPEAR BEFORE THE CIT(APPEALS) AND FILE WHATEVER DETAILS IT WANTS TO RELY. NEEDLESS TO SAY THE CIT(APPEALS) SHOULD GIVE ONE MORE FINAL OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ISSUES AFRESH AFTER HEARING THE ASSESSEE. IN CA SE THE ASSESSEE FAILS TO APPEAR BEFORE HIM THE CIT(APPEALS) IS FREE TO TAKE WHATEV ER DECISION HE DEEMS PROPER. THE DEPARTMENT IS ALSO AT LIBERTY TO TAKE WHATEVER COERCIVE ACTION AVAILABLE UNDER THE LAW. WE HOLD AND DIRECT ACCORDINGLY THE GROUND S RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 5 10) IN THE RESULT THE APPEAL FILED BY THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 8TH OF DECEMBER 2010. SD/- SD/- ( R. S. PADVEKAR ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI DATE: 08/12/2010 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T. 4. CIT (A) 5. THE DR G - BENCH ITAT MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI ROSHANI