IN THE INCOME TAX APPELLATE TRIBUNAL
"I" Bench, Mumbai
Before Shri D. Manmohan, Vice President
and Shri Sanjay Arora, Accountant Member
ITA No. 3075/Mum/2013
(Assessment Year: 2009-10)
Smt. Ina Jayesh Mehta Income Tax Officer-25(1)(1)
A/3, Aditya Park, C.S. Road Vs. Mumbai
Dahisar (E), Mumbai 400068
PAN - AAOPM3451B
Appellant Respondent
Appellant by: None
Respondent by: Shri Love Kumar
Date of Hearing: 16.06.2015
Date of Pronouncement: 26.06.2015
ORDER
Per D. Manmohan, V.P.
This appeal by the assessee is directed against the order passed by
CIT(A)-35, Mumbai and it pertains to A.Y. 2009-10. Notice sent to the
assessee at the address given in Form No. 36 was returned unserved with
the postal remarks "Left". Assessee did not furnish change of address, if any.
Under the circumstances we proceed to dispose of the appeal exparte, qua
assessee.
2. Assessee raised the following grounds without prejudice to each
other:-
1) That the learned CIT(A) has not passed order based on the submission
made by appellant in true and positive manner and has passed
impugned order;
2) That the learned CIT(A) has not given any authority nor examined issue
on the direction to be provided to the learned Assessing Officer for
providing document and thereby in violation of the law laid down by
the Hon. Supreme Court in the case of Surajmal Mohta & Co. V/s
A.V. Vishwanatha Sastri (1954) (26 ITR 1 SC) has passed the
impugned order;
3) That the learned CIT(A) failed to consider the facts with regards to
passing of the order Under Section 143(3) without any evidences and
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Smt. Ina Jayesh Mehta
thereby without providing reasons rejected audited books of accounts
and passed the impugned order;
4) That the learned CIT(A) fails to consider Para No. 37 of instruction
dated 25th October, 2005 of CBDT and without justifiable reasons with
a speaking order of Hon. CIT-XIII, Mumbai, the learned Assessing
Officer has passed Order has been ignored;
5) That the learned CIT(A) has not properly determined the net profit nor
provided comparable sums of assessee to justify the profit for Appellant
and passed the impugned order;
6) That the learned CIT(A) failed to considered the provisions of section 33
and Order XX of the Civil Procedure Code read with the law and
passed of judgement with speaking order and with justifying the facts
and passed impugned Order;
7) That the learned CIT(A) has passed the order which is having lack of
inherent jurisdiction nullity to bind the Appellant."
3. Facts necessary for disposal of the appeal are stated in brief. Assessee
is engaged in the business of chemical products. In respect of the previous
year relevant to A.Y. 2009-10 assessee declared total income of `9,74,090/-.
The return of income having been selected for scrutiny the AO called for
records and examined the same to enable him to complete the assessment.
During the assessment proceedings AO issued notice under section 133(6) of
the Act to various parties listed out in the assessment order and also
brought it to the notice of the assessee but on the part of the assessee, she
did not produce any documentary evidence about the existence of the
parties, i.e. she did not obtain confirmation letters. Assessee did not even
sign the ledger accounts, etc. On account the carelessness on the part of the
assessee in furnishing documentary evidence the AO proceeded to add back
the entire sales amount as income of the assessee (AO treated the same as
bogus sales). AO had also issued notices under section 133(6) of the Act to
the parties from whom she has made purchases. Assessee did not produce
the ledger account or filed confirmation letters. The AO reduced the same
from the trading account, which would automatically result in enhancement
of net profit of the assessee. In other words, the AO concluded that the
assessee made bogus purchases and bogus sales.
4. Aggrieved, assessee contended before the CIT(A) that the assessment
order is vitiated because he has not followed the principles of natural
justice. She quoted the legal maxim "experessio Unius Est Exclusio Alterius"
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Smt. Ina Jayesh Mehta
which means that if a statute provides for a thing to be done in a particular
manner, then it has to be done in that manner and recourse to other
manner is not allowed. It was submitted that though the case was said to
have been selected for scrutiny after obtaining approval from the CCIT,
Mumbai, copy of the said order was not provided to the assessee, which
clearly proves that the assessment order is prima facie false and frivolous.
She also challenged the issuance of notices under section 143(2) and 142(1)
of the Act on the ground that the date of service of notice, mode of service
and content therein are not provided and thus the assessment is bad in law.
It is further contended that notices under section 133(6) have been issued to
the parties to whom sales were made and it was alleged by the AO that no
copies of the sale invoices, etc. were furnished. In the instant case assessee
was not permitted to be represented by an Advocate and hence the
assessment order was bad in law. She also challenged charging of interest,
disallowance of claim under section 80C, etc.
5. The learned CIT(A) observed that assessee has not furnished evidence of
payment of institution fees and failed to produce the original challan towards
payment of appeal fees. Therefore the appeal was dismissed as unadmitted.
6. Aggrieved, assessee preferred appeal before us. None appeared for the
assessee. No material was placed on record to prove that assessee has paid
institution fees to enable her to file an appeal before the CIT(A). Under these
circumstances we are of the view that the learned CIT(A) was justified in
dismissing the appeal as unadmitted for want of following the procedures
prescribed under section 249 of the Act.
7. In the result, appeal filed by the assessee is dismissed.
Order pronounced in the open court on 26th June, 2015.
Sd/- Sd/-
(Sanjay Arora) (D. Manmohan)
Accountant Member Vice President
Mumbai, Dated: 26th June, 2015
4 ITA No. 3075/Mum/2013
Smt. Ina Jayesh Mehta
Copy to:
1. The Appellant
2. The Respondent
3. The CIT(A) 35, Mumbai
4. The CIT 25, Mumbai City
5. The DR, "I" Bench, ITAT, Mumbai
By Order
//True Copy//
Assistant Registrar
ITAT, Mumbai Benches, Mumbai
n.p.
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