ASHOK I. BACHANI ( HUF),MUMBAI vs. ITO 24(1)(3), MUMBAI

The appeal was first posted for hearing on 7.6.2012 on which date it was adjourned at the request of the assessee. The matter once again came up for hearing on 19.2.2013 and once again at the request of the assessee, the hearing was adjourned. Again the matter came up for hearing on 29.10.2013 and once again it was adjourned at the request of the assessee. On 7.5.2015, no one represented the assessee, a notice was issued through RPAD fixing the hearing for today i.e. 23.11.2015. As the assessee is not represented by anyone inspite of the factual matrix mentioned hereinabove and also the service of notice, we have decided to proceed ex-parte.

The roots for the levy of penalty lie in the assessment order dated 5.12.2007 made u/s. 143(3) of the Act. During the course of the scrutiny assessment proceedings, the Assessing Officer noticed that the assessee has debited processing charges. The assessee was asked to explain the genuineness of the same. An identical issues were also involved in A.Y. 2003-04 where the assessee claimed that all the transactions are bogus transaction, the same explanation was given for the year under consideration also. Accordingly, the processing charges amounting to Rs. 82,74,236/- were disallowed and penalty proceedings u/s. 271(1)(c) of the Act was initiated.

During the course of the penalty proceedings, the assessee was asked to show cause why penalty u/s. 271(1)(c) of the Act should not be levied. In its reply, the assessee once again reiterated what has been stated in earlier years claiming that he is only a name lender and has done business on paper only therefore, no penalty should be levied. The AO was not convinced on the fact that the assessee could not file the details of the persons to whom he has paid the weaving charges totaling to Rs. 82,74,236/- and concluded by levying penalty u/s. 271(1)(c) of the Act.

The assessee carried the matter before the Ld. CIT(A) but without any success. The Ld. CIT(A) once again drawing support from the earlier history of the assessee held as under:

“ I have gone through the contents of the impugned assessment order as well as submissions of the Ld. Authoroized Representative of the appellant alongwith material available on record. I find no legal infirmity in imposing the penalty u/s. 271(1)(c). The appellant has already exhausted the channel of mercy petition u/s. 264 against the assessment order wherein the processing charges were found to be bogus. The Ld. CIT-24 vide his order dated 7.10.2008 rejected the impugned petition u/s. 264 by upholding the findings of the AO in the assessment order. Thereafter, unusually the appeal was filed by the assessee against the assessment order before CIT(A) too and that was also dismissed for being belated by 10 months and three weeks. The Assessing Officer has brought out all the facts on record and I do not find any reason to interfere with his impugned order u/s. 271(1)(c). In view of the Hon’ble Supreme Court’s decision in the case of UOI Vs Dharmendra Textile Processors (2007) 295 ITR 244 (SC), the mens-rea is not to be proved by the AO before imposing penalty u/s. 271(1)(c). Accordingly, in view of the above discussion and facts and circumstances of the above case the impugned penalty is upheld, as the AO has been judicious too in imposing the penalty at minimum only. Hence, the penalty u/s. 271(1)(c) is confirmed.”

Aggrieved by this, the assessee is before us.

As mentioned elsewhere, none appeared on behalf of the assessee. The Ld. Departmental Representative strongly supported the findings of the Revenue authorities.

We have given a thoughtful consideration to the orders of the authorities below. As mentioned elsewhere, in A.Y. 2003-04 also the assessee was found to be indulged in similar clan destine activities which proves that assessee is a habitual offender, therefore, we do not find any reason to interfere with the findings of the Ld. CIT(A).

In the result, the appeal filed by the assessee is dismissed.