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Income Tax Appellate Tribunal, MUMBAI BENCHES “F”, MUMBAI
Before: SHRI JASON P. BOAZ (AM) & SHRI SANDEEP GOSAIN (JM)
This appeal by the assessee is directed against the order of the CIT(Appeals)- 33, Mumbai dt. 27/03/2012 for Asst. year 2005-06.
The facts of the case, briefly, are as under:-
2.1 The assessee, earning income from salary and from tours and travels, filed his return of income for Asst. year 2005-06 on 06/05/2005 declaring total income of Rs. 18,06,061/- and agricultural income of Rs. 40,51,000/-. The case was selected for scrutiny and the assessment finally came to be completed ex-parte u/s 144 of the Income Tax Act, 1961 (in short ‘the Act’) vide order dt. 20/12/2007, wherein the income of the assessee was determined at Rs. 1,37,61,335/-. The assessee’s appeal before the CIT(A)-33, Mumbai was dismissed vide the order of the CIT(A)-XII, Mumbai dt. 22/01/2009. Against this order, the assessee filed an appeal before the Tribunal, which was set aside the order of the CIT(A) and restored the matter back to his file for denovo hearing and adjudication after affording the assessee adequate opportunity of being heard. The Ld. CIT(A)-33, Mumbai dismissed the assessee’s appeal vide order dt. 27/03/2012.
Aggrieved by the order of the CIT(Appeals)-33, Mumbai dt. 27/03/2012 for Asst. year 2005-06, the assessee has preferred this appeal raising the following grounds:-
1. On the facts and circumstances of the Appellant’s case and in law, the Learned Commissioner of Income Tax (Appeals) erred to hold that the reopening of the assessment u/s. 144 by issue of notice u/s. 148 is valid.
2. On the facts and circumstances of the Appellant’s case and in law, the Learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs. 76,056,335/- made by the Assessing Officer on account of alleged unexplained cash credit u/s. 68 of the Act as income from other sources.
3. On the facts and circumstances of the Appellant’s case and in law, the Learned Commissioner of Income Tax (Appeals) erred in not accepting the agricultural income of Rs. 40,51,000/- as declared by appellant in his return of income.
4. While confirming the addition, ld.CIT(A) erred in not considering the various documentary evidences produced before him such as passport copies, Bank statements, loan confirmation letters.
5. On the facts and circumstances of the Appellant’s case and in law, the Learned Commissioner of Income Tax (Appeals) erred in estimating the business income of Smile Tours & Travels at Rs. 2,25,000/- as against Rs. 16,781/- declared in the return of income.
6. On the facts and circumstances of the Appellant’s case and in law, the Learned Commissioner of Income Tax (Appeals) erred in estimating the business income of Shree Trading at Rs. 1,00,000/- as against Rs. 9,280/- declared in the return of income.
The appellant craves, leaves to alter, amend, withdraw or substitute any ground or grounds or to add any new ground of appeal or all of the above grounds of appeal, on or before hearing, each of which are without prejudice to one another.
As per the record, the assessee has been granted at least 14 opportunities of being heard in this appeal. Either none appeared on behalf of the assessee or adjournment has been sought. Vide letter dt. 24/08/2015 the AR for the assessee submitted that since there has been no communication/instructions from the assessee and documents have not been given to him, he was withdrawing from representation in this case. Even the notice issued subsequently by RPAD has been returned unserved. Today, i.e. 15/02/2016 when the case was called for hearing, no one was present for the assessee but the Ld. DR was present for revenue. In the circumstances of the case as mentioned above, it appears that the assessee is not serious about pursuing this appeal and we are therefore disposing off this appeal with the assistance of Ld. DR for Revenue and material on record hereunder.
Ground No: 1 (supra) appears to be infructuous, as the order of assessment for Asst. year 2005-06 passed ex-parte u/s 144 of the Act does not appear to have been re-opened by issue of notice u/s 148 of the Act and neither has such a ground been raised by the assessee and dismissed by the Ld. CIT(A) in the impugned order. In these circumstances this ground not emanating from any adverse finding in the orders of the authorities below, is infructuous and is accordingly dismissed.
Ground No: 7 (supra), being general in nature, no adjudication is called for thereon.
7. Ground No. 2 & 4 Cash credit u/s 68- Rs. 76,05,335/- 7.1 In the impugned order, the Ld. CIT(A) after considering the Assessing Officer’s remand report and the assessee’s submissions at paras 2.1.8 to 2.2.8 and considering judicial pronouncements in this regard has held as under at para 2.29:- As discussed above the appellant has not been able to support his claim that unsecured loans reflected at Rs. 25,94,950/-taken in the books of M/s. Smile Tours & Travels, the proprietary concern of the appellant and further amount of Rs. 50,10,385/- in the books of M/s. Shree Trading Company another proprietary concern of the appellant are genuine unsecured loans and hence have to be added back and hence additions made by A.O. for these amounts u/s 68 are confirmed. This ground is dismissed.
7.2 After hearing the Ld. DR for revenue in the matter and carefully perusing the findings of the Ld. CIT(A) in the impugned order, we find that the assessee has been unable to controvert the findings of the Ld. CIT(A). In this view of the matter, we find no reason to deviate from or interfere with the findings as recorded by the Ld. CIT(A) and accordingly confirm the some. Consequently, ground no. 2 & 4 of the assessee’s appeal are dismissed.
Ground No. 3- Agricultural income Rs. 40,51,000/- 8.1 In this ground, the assessee has challenged the impugned order of the Ld. CIT(A) is not accepting his agricultural income as declared. In the impugned order, after considering the assessee’s submissions, and the findings of the Ld. CIT(A) for Asst. year’s 2003-04 and 2004-05 at paras 2.15 and 2.16, the Ld. CIT(A) at para 2.17 has dismissed the assessee’s grounds holding as under:-
2.17 In the instant appeal which pertains to A.Y. 2005-06, since there is no submission at all from the appellant’s side to prove that he had agricultural income to the extent of Rs. 40,51,000/- following the decision given in earlier A.Y.’s in the case of appellant, the claim for agricultural income made at Rs. 40,51,000/- having remained unsupported has to be added back and hence addition made for Rs. 40,51,000/- by the A.O. in the assessment order dated 20/12/2007 which was originally passed u/s 144 now stands confirmed. This ground of appeal is dismissed.
8.2 After hearing the Ld. DR in the matter and carefully perusing the findings of the Ld. CIT(A) in the matter, we find that the assessee has not been able to place on record any material evidence to controvert the findings of the Ld. CIT(A) in the impugned order. In this view of the matter, we find no reasons to interfere with the findings rendered by the Ld. CIT(A) in the impugned order and therefore uphold the same. Consequently, ground no. 3 raised by the assessee is dismissed.
Ground No. 5 and 6.
9.1 In these grounds, the assessee has challenged the orders of the Ld. CIT(A) in estimating the income of M/s Smile Tours and Travels at Rs. 2,25,000/- as against Rs. 16,781/- declared in the return of income and of M/s Shree Trading at Rs. 1,00,000/- as against Rs. 9,280/- declared in the return of income for Asst. year 2005-06. In this regard, the finding of the Ld. CIT(A) at para (c) on page 13 of the impugned order is as under:- (C) Business income of proprietary concerns-- “Further the income from business estimated at Rs. 2,25,000/- of Smile Tours & Travels and Rs. 1,00,000/- of M/s. Shree Trading Company, again since the appellant has not made any submissions it has to be presumed that he has nothing to say and hence these additions are also upheld. In view of this, the appeal is dismissed.”
9.2 After hearing the Ld. DR in the matter and carefully perusing the findings of the Ld. CIT(A) in the impugned order, we find that except for raising these grounds, the assessee has failed to bring on record any material evidence to controvert the findings rendered by the Ld. CIT(A) in the impugned order. In this view of the matter, we find no reason to deviate from or interfere with the findings of the Ld. CIT(A) in the impugned order and therefore uphold the same. Consequently, grounds no. 5 and 6 of the assessee’s appeal are dismissed.
In the result, the assessee’s appeal for Asst. year 2005-06 is dismissed.
Order pronounced in the open court on 19th February, 2016