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Income Tax Appellate Tribunal, MUMBAI BENCH “D”, MUMBAI
Before: SHRI AMIT SHUKLA, HONBLE & SHRI S. RIFAUR RAHMAN, HONBLE
O R D E R PER S. RIFAUR RAHMAN (AM)
These appeals are filled by the assessee against different orders of Learned Commissioner of Income Tax (Appeals)-53, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 23.08.2018, 26.11.2019 & 25.11.2019 for the A.Y.2012-13, 2011-12 and 2016-17 respectively. The appeal in ITA.No. 920/Mum/2020 is filed by M/s. Realtime Properties Ltd., against order of the Ld.CIT(A) dated 25.11.2019 for the A.Y. 2015-16.
ITA NO.6378/MUM/2018 & 924/MUM/2020
At the time of hearing on 20.12.2022 it was observed that assessee never taken efforts to represent its case. From the day the appeal was filed either none appeared at the time of hearing or taken adjournment on regular basis. When the counsel was asked to represent this case on 3 (A.Y: 2012-13) ITA NOs. 920, 922 & 924/MUM/2020 M/s. Delux Polymers Pvt. Ltd., & M/s. Realtime Properties Ltd., next date of hearing i.e., on 22.12.2022 and advised that no more adjournment shall be entertained. However, when the appeal was called today i.e., 22.12.2022, none appeared on behalf of the assessee and it clearly shows that assessee is not keen to contest the case. Considering the facts on record, it is relevant to notice that this appeal was filed on 05.11.2018 till now no efforts were taken by the assessee to prosecute the case.
On careful consideration of the facts available on record in ITA.No. 6378/Mum/2018, we observe that assessee has not disclosed certain income in its return of income filed for the respective Assessment Years. Considering the overall facts on record, Ld.CIT(A) has sustained the penalty levied by the Assessing Officer with the following observations: -
“16. It is an undisputed fact that penalty proceedings were initiated by the AO in the assessment order. The Explanation 1 to section 271(1)(c) does not have to be specifically invoked, as it is part of the substantive provision as held by the Apex Court (refer KP Madhusudhanan vs CIT (SC) 251 ITR 99). After insertion of Expn. 1 to sec. 271(1)(c), the law on concealment has become stiffer. The Explanation as it stands now is a complete code having the following features: (i) Every difference between reported and assessed income needs an explanation. (ii) If no explanation is offered, levy of penalty may be justified (iii) if explanation is offered, but is found to be false, penalty is leviable (iv) if explanation is offered and it is not found to be false, penalty may not be leviable if (a) such explanation is bona fide (b) the assessee has made available to the AO all the facts and 4 (A.Y: 2012-13) ITA NOs. 920, 922 & 924/MUM/2020 M/s. Delux Polymers Pvt. Ltd., & M/s. Realtime Properties Ltd., materials necessary in computation of income. By not substantiating its claim of depreciation expenses, it is clear that the appellant has failed to substantiate its explanation. Further, an incorrect capital gain was offered in the return and the assessing officer noted that capital gain was not offered. He has added only the difference and penalty is levied on this difference. An explanation has been offered that it was a bonafide mistake but the explanation is not substantiated. As per the Explanation 1, the amount added to income in assessment is deemed to represent the income in respect of which particulars have been concealed. This is clearly applicable in facts of the present case.”
On a careful perusal of the order of the Ld.CIT(A) and the reasons given therein, we do not find any reason to interfere with the findings of the Ld.CIT(A) especially when there is no representation from the assessee side, it clearly shows that assessee is not interested in pursuing the case. The facts in other appeals i.e., ITA.No. 922 & 924/Mum/2020 are exactly similar to the facts in the appeal in ITA.No. 6378/Mum/2018 for the A.Y. 2012-13, accordingly all the appeals filed by the assessee are dismissed.
In the result, appeals filed by the assessee are dismissed.
Similarly, in the case of M/s. Realtime Properties Ltd., it was observed that Assessing Officer has estimated the income after rejecting the carryforward of loss claimed by the assessee. It was also observed that assessee has declared return loss of ₹.8,50,45,785/- to a higher loss of ₹.10,39,69,388/- by filing a revised return of income. However, no explanation was furnished with the evidences before tax authorities.
Aggrieved assessee preferred appeal before the Ld.CIT(A) and Ld.CIT(A) after considering the facts on record dismissed the appeal filed by the assessee with the following observation: -
“5.4. I have considered the submissions carefully. While the appellant has made the contention that the assessing officer has not given any basis for his estimate of income, it has not in the slightest way explained its non- attendance and non-submission of any details or explanation in the assessment proceedings. Thus it is clear that the appellant is complaining but is trying to take advantage of its own non-compliance. It is noted that the appellant had revised its return of income from loss of Rs.8,50,45,785/- to a higher loss of Rs. 10,39,69,388/- However there is no explanation furnished with evidence for the same. There is huge increase of Rs 28 crores under the head current liabilities, but no details or evidence are offered. In these facts, the estimate is confirmed as it is commensurate with the figures arising from the accounts submitted. Ground of appeal no 1 and 2 are dismissed. At the same time the assessing officer is 6 (A.Y: 2012-13) ITA NOs. 920, 922 & 924/MUM/2020 M/s. Delux Polymers Pvt. Ltd., & M/s. Realtime Properties Ltd., directed to verify the brought forward losses as per records and allow the same as admissible.”
8. From the above, we observe that Ld.CIT(A) has remitted the issue back to the file of the Assessing Officer, therefore, there is no prejudice caused to the assessee. Therefore, the appeal filed by the assessee is accordingly, dismissed.
In the result, appeal filed by the assessee is dismissed.
Order pronounced in the open court on 15th March, 2023