Income Tax Appellate Tribunal - Pune
Shree Gajanan Construction,, Nashik vs Assistant Commissioner Of ... on 23 June, 2017
आयकर अपील य अ धकरण] पण
ु े यायपीठ "बी" पण
ु े म
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "B", PUNE
BEFORE MS. SUSHMA CHOWLA, JM AND
SHRI ANIL CHATURVEDI, AM
आयकर अपील सं
. / ITA No.122/PUN/2014
नधा रण वष / Assessment Year : 2009-10
Shree Gajanan Construction, .......... अपीलाथ /
Plot Nos.101 & 102,
Appellant
Gat No.198A, Shramik Nagar,
Satpur, Nashik.
PAN : AATFS6790C.
बनाम v/s
Asst. Commissioner of Income Tax, .......... यथ /
Circle-II, Nashik.
Respondent
अपीलाथ क ओर से / Appellant by : Shri Pramod Shingte
यथ क ओर से / Respondent by : Shri B.Y. Chavan
सन
ु वाई क तार ख / घोषणा क तार ख /
Date of Hearing : 19.06.2017 Date of Pronouncement: 23.06.2017
आदे श / ORDER
PER ANIL CHATURVEDI, AM :
This appeal filed by the assessee is emanating out of the order of Commissioner of Income Tax (A) - II, Nashik dt.14.06.2012 for the assessment year 2009-10.
2. The relevant facts as culled out from the material on record are as under :-
2.1 Assessee is a Partnership firm stated to be engaged in the business of construction. Assessee electronically filed its return of income for A.Y. 2009-10 on 29.09.2009 declaring income of 2 Rs.6,11,110/-. The case was selected for scrutiny and thereafter notices u/s 143(2) and 142(1) of the Act were issued and served on the assessee. AO noted that neither the assessee nor its representative appeared in the case. AO thereafter, after giving several opportunities, proceeded to frame the order u/s 144 of the Act.
3. AO noticed that a survey action u/s 133A was conducted in case of assessee on 12.08.2008 and during the course of survey, assessee confirmed undisclosed income of Rs.81,06,500/-
comprising of the following :
1) On money received on sale of Rs.44,56,500/-
Pathardi Project
2) On account of unexplained Rs.5,50,000/-
investment in construction of Pathardi Project
3) On account of profit on sale of Rs.31,00,000/-
Pathardi Project
Total undisclosed income Rs.81,06,500/-
AO on perusing the Profit and Loss account and computation of income, noticed that assessee had disclosed income only Rs.5,50,000/- as additional income as against the amount of Rs.81,06,500/- disclosed at the time of survey action. In the absence of any details or justification, AO considered the balance undisclosed income at Rs.75,56,500/- (Rs.81,06,500/- - Rs.5,50,000/-) as income of the assessee. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A), who upheld the order of AO by holding as under :
3
"12. The statements of various persons as given above establish beyond doubt that the appellant firm received Rs. 44,56,500/- in cash as 'on money' from Sandip Foundation for sale of its property at survey no. 297, pathardi. The total consideration of the property was Rs. 1,21,80,000/- but Rs.77,23,500/- only was shown in the sathekhat agreement dt. 07/08/2008. The appellant firm had not shown receipt of cash amounting to Rs.44,56,500/- in its books of accounts. The appellant firm could also not substantiate sources of investment in construction of the property and therefore surrendered Rs.81,06,500/- as additional income for AY 2009-10 during survey. The appellant retracted the disclosure without furnishing any evidence for the said retraction. In the facts and circumstances of the case, I am of the considered view that Rs.75,56,500/- has rightly been added by the AO.
13. During the course of appellate proceedings the appeal was fixed for hearing on 18/04/2012, 03/05/2012, 22/05/2012 and finally on 04/06/2012. The notices were sent by speed post with acknowledgement due and have been duly served. The appellant attended the office on 22/05/2012 but did not controvert the findings of the AO by filing any documentary evidence relevant for the AY under appeal. No details in support of its grounds of appeal were filed.
14. From the above it is abundantly clear that the appellant has failed to furnish the requisite documents in support of his grounds of appeal. During the appellate proceedings, the appellant did not comply with the various notices sent to him for attending the appeal. In assessment proceedings also the appellant did not comply with the various notices and failed to furnish any details. AO was left with no option but to complete the assessment proceedings u/s 144 rws 143(3) of the IT Act. The conduct of the appellant has established that he has no documents in his possession to explain his undisclosed income offered for taxation during survey. It also establishes that the appellant is not interested in pursuing the appeal despite repeated opportunities given to it by the undersigned, In the facts and circumstances of the case, I am of the considered view that AO was justified in making the additions of Rs.75,56,500/- for AY 2009-10. The same is confirmed."
Aggrieved by the order of Ld.CIT(A), assessee is now in appeal before us and has raised the following grounds :
"1. On the basis of facts and in the circumstances of the case the delay in filing of appeal please be condoned.4
2. On the basis of facts and in the circumstances of the case the appeal may please be set aside to the file of the Commissioner of Income Tax, (Appeal)-II, Nashik for fresh adjudication.
3. On the basis of facts and in the circumstances of the case and as per Law, the Commissioner of Income Tax, (Appeal)-II, Nashik is not justified in confirming the addition of Rs.44,56,500/- made by the AO on account of money received on sale of project of Pathardi.
4. On the basis of facts and in the circumstances of the case and as per Law, the Commissioner of Income Tax, (Appeal)-II, Nashik is not justified in confirming the addition of Rs.31,00,000/- made by the AO on account of profit on sale of Pathardi Project."
4. The case file reveals that there is delay of 499 days in filing the present appeal. Assessee has prayed for condonation of delay and has filed the affidavit of Sri Sanjeev S. Mutha, Partner of assessee's firm, wherein inter-alia, it has been stated that the C.A. Mr. Ulhas Patil, who was entrusted with the filing of the appeal did not file the appeal though he represented to assessee that the appeal has been filed. Later on, when it came to the notice of assessee that the CA has not filed the appeal, assessee filed the present appeal. He further submitted that against the conduct of CA, a complaint has been lodged by assessee with the Institute of Chartered Accountants and the same is pending. It was therefore submitted that the delay in filing the present appeal be condoned. Ld.D.R. objected to the condonation application filed by the assessee and submitted that filing of complaint against the CA Ulhas Patil before the Institute of Chartered Accountants is after filing of appeal and it is after thought and therefore the prayer for condonation of delay may be dismissed.
5. We have heard both the parties on the issue of delayed filing of present appeal. After considering the submissions of Ld.A.R. 5 and the averments made by the Partner in the sworn affidavit, we are of the view that there was a reasonable cause for delay in filing the appeal and hence, the delay is condoned and the appeal is admitted for hearing.
6. On the merits of the issue, Ld.A.R. reiterated the submissions made before AO and Ld.CIT(A) and further submitted that in the present case the addition has been made only on the basis of statement recorded during the course of survey and the statement recorded does not carry evidentiary value for which he relied on the decision of Hon'ble Supreme Court in the case of CIT Vs. S. Khader Khan Son (2013) 352 ITR 480 (SC). He further submitted that in the present case, as far as addition of Rs.44,56,500/- being receipt of "on money" is concerned, the same needs to be added to the income. As for as addition of Rs.5,50,000/- on account of unexplained investment in construction is concerned, he submitted that it has been offered to tax. He further submitted that the verification of claim of Rs.31,00,000/- of the profit has not been examined at the lower level and therefore the matter may be remitted back to the AO for verification.
7. Ld.D.R. on the other hand, supported the order of AO and Ld.CIT(A) and further submitted that the payment of "on money"
has been confirmed and since no books of accounts were maintained by the assessee and in the absence of any justification before AO or in appellate proceedings despite several opportunities 6 granted by them, AO was fully justified in making the addition. He thus supported the order of Ld.CIT(A).
8. We have heard both the parties and perused the material on record. The issue in the present case is with respect to the addition of undisclosed income. Ld.CIT(A) while confirming the order of AO has noted that during the course of survey, assessee had admitted an undisclosed income of Rs.81,06,500/- but had retracted and offered only Rs.5,50,000/- as additional income. He has further given a finding that assessee did not attend assessment proceedings and did not file any documentary evidence in support of retraction of undisclosed income offered at the time of survey. We further find that Ld.CIT(A) has noted that during the course of survey the partners of the firm had admitted to the receipt of 'on money'. He has further noted that assessee had also admitted that no details of investment for construction were made and the cost of construction was an approximate basis. Ld.CIT(A) has also noted that though various opportunities were granted to the assessee by AO and CIT(A) but assessee did not avail the opportunity of filing the required details and the necessary evidences. Before us, Ld.A.R. could not controvert the findings of lower authorities.
9. Before us. Ld.A.R. has relied on the decision of Hon'ble Supreme Court in the case of Khader Khan Son (supra). We find that the ratio of the decision of the above is not applicable to the facts of the present case. Considering the aforesaid facts, we are of 7 the view that no interference with the order of Ld.CIT(A) is called for and thus the grounds of the assessee are dismissed.
10. In the result, the appeal of the assessee is dismissed.
Order pronounced on 23rd day of June, 2017.
Sd/- Sd/-
(SUSHMA CHOWLA) (ANIL CHATURVEDI)
या यक सद!य / JUDICIAL MEMBER लेखा सद!य / ACCOUNTANT MEMBER
.
पुणे Pune; दनांक Dated : 23rd June, 2017.
Yamini
आदे श क# $ त&ल'प अ(े'षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. CIT(A)-II, Nashik.
4. CIT-2, Nashik.
5. #वभागीय &त&न'ध, आयकर अपील य अ'धकरण, "बी" / DR, ITAT, "B" Pune;
6. गाड- फाईल / Guard file.
आदे शानस ु ार/ BY ORDER,स // True Copy // //// // सहायक रिज23ार/ Assistant Registrar, आयकर अपील य अ'धकरण ,पुणे / ITAT, Pune.