Pravin Kantilal Tathed,, Nashik vs Assessee

Pravin Kantilal Tathed, Laxmi Nagar, Market Yard, A/p. Lasalgaon, Tal. Niphad, Dist. Nashik - 422 306. PAN : ACRPT8383J .... Appellant

Vs.

Income Tax Officer, Ward- 2(1), Nashik. .... Respondent

Assessee by : None Department by : Mr. B. C. Malakar Date of hearing : 18-02-2015 Date of pronouncement : 31-03-2015

ORDER

PER G. S. PANNU, AM

The captioned appeal by the assessee is directed against the order of

the Commissioner of Income Tax (Appeals)-II, Nashik dated 04.03.2013

which, in turn, has arisen from an order dated 22.03.2005 passed by the

Assessing Officer u/s 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short

"the Act") pertaining to the assessment year 1999-2000.

2. In this appeal, assessee has raised the following Grounds of Appeal :-

"1. On the basis of facts and in the circumstances of the case and as per law, the Commissioner of Income Tax (Appeals)-II Nashik is not justified in confirming the addition of Rs.8,914/- on account of profit on a sale of FSI in Suyojit Sankul to Manoj Chordiya.

2. On the basis of facts and in the circumstances of the case and as per law, the Commissioner of Income Tax (Appeals)-II, Nashik is not justified in confirming the addition of Rs.8,23,000/- on account of unexplained capital."

3. At the time of hearing, it was noticed that none appeared on behalf of

the appellant-assessee and neither any application for adjournment was filed 2 ITA No.979/PN/2013

in-spite of the appeal having been adjourned on the earlier date at the request

of the appellant-assessee. In view of the aforesaid, having regard to the rule

24 of the Appellate Tribunal, 1963, we have proceeded to dispose of the

appeal ex-parte qua the appellant-assessee after hearing the

respondent/Revenue on merits.

4. The appellant is an individual who is engaged in the business of

commission agent of vegetables. This appeal has arisen from an order of the

CIT(A), which has been passed in consequence of the matter having been

restored back to his file by the Tribunal vide its order in ITA No.1275/PN/2007

dated 17.07.2009.

5. In so far as the first Ground of Appeal is concerned, it is with regard to

an addition of Rs.8,914/- made on account of profit on sale of FSI in Suyojit

Sankul to Mr. Manoj Chordiya. The order of the CIT(A) reveals that assessee

did not dispute that the profit of Rs.8,914/- was earned by him on account of

sale of FSI to Mr. Manoj Chordiya. However, the position canvassed by the

assessee was that such income was considered while filing the original return

of income though admittedly assessee was not maintaining any books of

account. The aforesaid plea of the assessee has been disposed-off by the

CIT(A) by making the following factual finding :-

"As regards addition of undisclosed profit of Rs.8,914/- on sale of FSI, the appellant's argument that it was due to the mistake of tax consultant that the accounts were not prepared correctly is without any basis. The appellant was a commission agent and had transacted a couple of properties during the A.Y. under appeal. Appellant's claim that Rs.8,914/- was included in the return of income was also found to be factually incorrect by AO as evident from para

6.1 of the assessment order. In view of the above addition of Rs.8,914/- is confirmed."

6. Before us, no material is on record which would justify any interference

with the aforesaid factual findings arrived at by the CIT(A). In this context, it is 3 ITA No.979/PN/2013

relevant that the Assessing Officer has discussed the issue in para 6.1 of the

impugned order passed u/s 143(3) r.w.s. 147 of the Act dated 22.03.2005.

The finding of the Assessing Officer is also to the effect that there was no

material to substantiate assessee's plea that the impugned profit formed a part

of the return of income. In the absence of any material to the contrary, the

concurrent finding of fact recorded by the lower authorities is hereby affirmed.

Accordingly, assessee fails on Ground of Appeal No.1.

7. The second Ground of Appeal raised by the assessee is with regard to

an addition of Rs.8,23,000/- made by the Assessing Officer on account of

unexplained credit to the capital account. On this aspect also we find that the

factual findings arrived at by the CIT(A) in para 6 of his order are unassailable.

The relevant findings are as under :-

"As regards addition of Rs.8,23,000/- on account of difference in capital account, the appellant has once again blamed his ITP for preparing wrong statements. The contention of the appellant is not acceptable in view of the AO's observation that after filing the original return of income by the aforesaid ITP, the appellant engaged 3 CAs including the present one (Shri S.S. Mutha). Despite notice u/s 148 of the Act, the appellant instead of filing the correct return of income chose to stick to his original return filed on 16/06/1999 and filed a balance sheet as on 31/03/2009 showing capital of Rs.14,90,000/- as against capital of Rs.4,64,600/- as on 31/03/2008. The appellant had shown cost of house at Rs.8,23,000/- as on 31/03/2008 and claimed to have sold the property for Rs.11,85,000/-. Instead of showing the gain in capital account or crediting the capital account by Rs.3,62,000/- (Rs.11,85,000/- minus Rs.8,23,000/-), the appellant has credited the capital account by Rs.11,85,000/-. In view of the above he has manipulated cash by Rs.8,23,000/- for which no plausible explanation has been given by the appellant. As mentioned above, appellant's contention that it was due to the mistake of ITP is not tenable and hence rejected. In view of the above addition of Rs.8,23,000/- is confirmed."

8. In view of the aforesaid discussion and in the absence of any material

to the contrary, the order of the CIT(A) which is also in consonance with the

findings of the Assessing Officer is hereby sustained. Thus, the Ground of

Appeal No.2 raised by the assessee is also dismissed.

4 ITA No.979/PN/2013

9. In the result, the appeal of the assessee is dismissed.

Order pronounced on 31 st March, 2015.

Sd/- Sd/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER

Pune, Dated: 31 st March, 2015. Sujeet

Copy of the order is forwarded to: - 1) The Assessee; 2) The Department; 3) The CIT(A)-II, Nashik; 4) The CIT-II, Nashik; 5) The DR "B" Bench, I.T.A.T., Pune; 6) Guard File. By Order //True Copy// Assistant Registrar I.T.A.T., Pune