Income Tax Appellate Tribunal - Mumbai
Naresh Katilal Shah, Mumbai vs Asst Cit Cir 2, Thane on 4 August, 2017
आयकर अपील य अ धकरण, मुंबई यायपीठ,'बी',मुंबई।
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, 'B' MUMBAI ी जो ग दर संह, या यक सद य एवं ी मनोज कुमार अ वाल, लेखा सद य, के सम Before Shri Joginder Singh, Judicial Member, and Shri Manoj Kumar Aggarwal, Accountant Member S.A. No.353/Mum/2017 (Arising out of ITA No.7659/Mum/2016) Assessment Years: 2009-10 Shri Naresh K. Shah, ACIT, 310, 3rd Floor, Simlim Square, बनाम/ Circle-2, Lamington Road, Thane Grant Road (East), Vs. Mumbai-400007 ( नधा#$रती /Assessee) (राज व /Revenue) PAN. No. BAQPS9096D नधा#$रती क ओर से / Assessee by Shri Prakash G Jhunjhunwala राज व क ओर से / Revenue by Shir T.A. Khan -DR ु वाई क' तार(ख / Date of Hearing:
सन 04/08/2017
आदे श क' तार(ख /Date of Order: 04/08/2017
2 S.A. No.353/Mum/2017
(Arising out of ITA No. 7659/Mum/2016 Shri Naresh K. Shah आदे श / O R D E R Per Joginder Singh(Judicial Member) This stay application has been filed by the assessee, seeking stay of the outstanding tax & interest liability of Rs.7,91,32,909/.
2. During hearing, Shri Prakash G. Jhunjhunwala, ld. counsel for the assessee, explained that the assessee is a proprietor of M/s Minirish Trade Corporation and M/s Ravi Raj Construction, engaged in providing accommodation bills. It was contended that the Ld. Assessing Officer estimated the profit at the rate of 2% on turnover of M/s Minirish Trade Corporation and at the rate of 8% of M/s Ravi Raj Construction, by pleading that the estimation is too high. It was pleaded that the assessee is not in a position to pay more as the amount of Rs.20,23,179/- has already been paid. The ld. counsel relied upon the decision from Hon'ble Karnataka High Court in the case of CIT vs Dynamic Enterprises (2013) 40 taxman.com 318 (Karnataka)(FB). It was also contended that the Sales Tax Department has already canceled the registration of the assessee causing inconvenience to the assessee. It was also pleaded that the assessee was arrested and was released on bail by the Hon'ble High Court vide Criminal bail Application No.1437 of 2014, dated 16/07/2014 (pages 45 & 46 of the paper book). On the other hand, the Ld. DR, Shri T.A. Khan, opposed granting of stay by contending that if stay is granted, it will 3 S.A. No.353/Mum/2017 (Arising out of ITA No. 7659/Mum/2016 Shri Naresh K. Shah affect the interest of Revenue and the assessee had been non- cooperative before the Assessing Officer and even did not respond to the notice issued to him.
2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee is proprietor of M/s Minirish Trade Corporation and M/s Ravi Raj Construction. The assessee was found indulged in providing accommodation bills without involving delivery of goods causing loss to the State Exchequer. The assessee filed its return on 30/09/2009. Notices were issued u/s 143(2) of the Act, which were returned back un-served by the postal authorities. Finally, service was affected through affixture on the last known address. The assessee did not appear and ultimately, the assessment was done u/s 144 of the Income Tax Act, 1961 (hereinafter the Act). The income of the assessee was estimated at the rate of 2% of the gross turnover of M/s Minirish Trade Corporation, which came to Rs.31,86,48,138/- and in the case of M/s Ravi Raj Construction, wherein the assessee was engaged in business of civil construction and supply of labours, section 44AD was applied and the net profit was estimated at the rate of 8% of the turnover. As per the information received from ACIT, Circle-4, vide letter dated 20/12/2012, it was confirmed that he granted Rs.4,31,85,000/- of unsecured loans to Mrs. Vastiben Shah and Rs.3,55,00,000/- to Mr. Mahesh L. Shah, 4 S.A. No.353/Mum/2017 (Arising out of ITA No. 7659/Mum/2016 Shri Naresh K. Shah the source of which was not explained. Ultimately, the income was assessed at Rs.17,98,59,709/-. On appeal, before the Ld. Commissioner of Income Tax (Appeal), the appeal of the assessee was dismissed. Before us also, the stand of the assessee is that the estimation of profit by the Assessing Officer is towards higher side.
2.2. On consideration of material facts and the assertions made from both sides, we are not convinced with the arguments of the assessee that reasonable amount cannot be deposited, therefore, the interest of Revenue cannot be ignored. So far as, the contention of the ld. counsel for the assessee that the income has been estimated towards higher side will be looked into by the Bench, while hearing the appeal of the assessee. Therefore, prima facie, we are of the view that the balance of convenience, so far as, stay is concerned, is not in favour of the assessee, therefore, the stay application of the assessee is dismissed.
2.3. However, to safeguard the interest of both sides, we deem it appropriate to grant early hearing to the assessee. The Registry of this Tribunal is directed to fix the appeal of the assessee, out of turn, for hearing on 19/09/2017. The assessee as well as Revenue are directed not to seek unnecessary adjournment and shall cooperate in early disposal of the appeal. Resultantly, the Stay Application of the assessee is rejected and early hearing is granted.
5 S.A. No.353/Mum/2017(Arising out of ITA No. 7659/Mum/2016 Shri Naresh K. Shah Finally, the stay application of the assessee is dismissed.
This Order was pronounced in the open court in the presence of Ld. representatives from both sides at the conclusion of hearing on 04/08/2017.
Sd/- Sd/-
(Manoj Kumar Aggarwal) (Joginder Singh)
लेखा सद#य / ACCOUNTANT MEMBER या$यक सद#य /JUDICIAL MEMBER
मब
ुं ई Mumbai; )दनांक Dated : 04/08/2017 f{x~{tÜ? P.S/. न.स.
आदे श क %$त'ल(प अ)े(षत/Copy of the Order forwarded to :
1. अपीलाथ- / The Appellant (Respective assessee)
2. ./यथ- / The Respondent.
3. आयकर आय1 ु त(अपील) / The CIT, Mumbai.
4. आयकर आय1 ु त / CIT(A)- , Mumbai,
5. 3वभागीय . त न ध, आयकर अपील(य अ धकरण, मब ुं ई / DR, ITAT, Mumbai/-
6. गाड# फाईल / Guard file.
आदे शानस ु ार/ BY ORDER, स/या3पत . त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मब ुं ई / ITAT, Mumbai