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Before: Shri Laliet Kumar & Dr. Mitha Lal Meena
In the Income-Tax Appellate Tribunal, Agra Bench, Agra
Before : Shri Laliet Kumar, Judicial Member And Dr. Mitha Lal Meena, Accountant Member
ITA Nos.35 to 38/Agr/2017 Assessment Years: 2009-10 to 2012-13
Nalanda Builders & Developers (I) vs. DCIT, Central Circle, Ltd, first Floor, Shanti Mall, Church Agra Road, Agra. PAN –AACCN2200J (Appellant) (Respondent)
Appellant by S/Sh. Rajendra Sharma, Manuj Sharma, Advocates Respondent by Sh. Waseem Arshad, Sr. DR
Date of Hearing 15.07.2019 Date of Pronouncement 16.07.2019
ORDER Per Bench: These are four connected appeals filed by the assessee, feeling aggrieved by
the order passed by ld. CIT(A) dated 30.11.2016 on the following grounds :
That the learned CIT (appeal) has arbitrary and unjust while deciding the appeal exparte ignoring the assessee's application moved for adjournment of the hearing. The appellate order passed without allowing of an opportunity of being heard, is against the natural justice, the order passed by the learned CIT (appeal) is liable to be set aside.
That the learned CIT (Appeals) has erred on facts and in law while sustaining the addition for Rs. 1,54,24,5007- made by the AO under Section 68 of the Income Tax Act. The addition sustained is highly unjustified, liable to be deleted. 3. That while sustaining the addition for Rs, 1,54.24,5007- treating the entries written in the seized documents found during the course of search as unexplained income within the meaning of Section 68 of the Income Tax Act, the
ITA Nos. 35 to 38/Agr/2017 2
authorities below have completely ignored the submissions and the explanation offered before them without appreciating the nature of assessee's business and also of its entries, no addition is liable to be made. The addition sustained by the learned CIT (Appeal) is liable to be deleted.
That the appellate order dated 30.11.2016 is bad in law.
Brief facts are that a search and seizure operation was conducted by the
department at the residential premises of one of the directors of the appellant
company, where several bonds, bill books and a few loose receipts of booking of
different properties in various projects of appellant company were found. The
details are given by the Assessing Officer in the assessment order. The Assessing
Officer was of the opinion that the amounts written in the receipts were not
recorded in the books of accounts maintained by the assessee. Accordingly, after
affording the opportunity of hearing to the assessee, the additions were made by the
Assessing Officer for the assessment year 2009-10, 2010-11, 2011-12 and 2012-13.
It was the case of the assessee that the assessee during the course of search
had surrendered an amount of Rs.3 crores, as additional income on account of
seizure of these documents. However, the Assessing Officer ignoring the
surrendered amount of Rs.3 crores, made additions in various years as mentioned in
the assessment order.
Feeling aggrieved by te order passed by the Assessing Officer the assessee
preferred an appeal before the ld. CIT(A) and the ld. CIT(A) in paragraph No. 3 has
mentioned as under :
ITA Nos. 35 to 38/Agr/2017 3
Discussion: It is seen that the appellant filed an appeal against the order dated 31.03.2015 of the DCIT- Central Circle, Agra pertaining to A.Y. 2009-10 to A.Y. 2012-13. However, at the time of hearing on 28.11.2016, no one was present on behalf of the assessee. However, only an application seeking adjournment was received on 28.11.2016. The record shows that notice for the specific date of hearing was sent on 08.11.2016 at the address given by the assessee in Column/No. 1 of Form No. 35.
Earlier to the above notice, following notices were also issued as per following, which were either remained unattended or appellant sought adjournment; Date of hearing Remark 28.06.2016 None attended nor any application seeking adjournment filed 19.07.2016 None attended only application seeking adjournment sent through post 12.08.2016 None attended only application seeking adjournment sent through post 28.11.2016 None attended only application seeking adjournment sent through post
It may be seen that the appellant is not interested in pursuing the appeal.
The date fixed for 28.11.2016, the appellant has only applied for another adjournment without cogent reasons, therefore, the adjournment is declined and I proceed to decide the appeal on the basis of material available on record.
Service of the notice: All the above notices of hearing have been sent by speed post and is presumed to have been duly received by the assessee as the same were not returned as 'unserved' by post office.
ITAT Mumbai In the case of Color Craft v ITO held that the notice sent through the 'speed post1 is totally valid in the eyes of law as 'registered post'.
The Hon'ble Tribunal while substantiating their decision relied on section 27 of General Clauses Act which mentions about 'service by post' and also on section 114(f) of the Evidence Act where the 'presumption about the proper maintaining of records have been mentioned’.
The case was also fixed and several a notices for hearing were also issued but none attended. The maxim 'vigilantibus noij-dermientibus jurasubveiumt’
i.e. "the law assists those who are vigilant and not those who sleep over their rights" is applicable.
Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukojirao Holkar vs. CWT (223 ITR 480) wherein it has been held as under:
ITA Nos. 35 to 38/Agr/2017 4
"... if the party, at whose instance the reference/is made, fails to appear at the hearing, or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, the court is not bound to answer the reference." Similarly, Hon'ble Punjab & Haryana High Court in the case of New Diwan Oil Mills vs. CIT (2008) 296 ITR 495) returned the/reference unanswered "Since the assessee remained absent and there was not any assistance from the assessee." Their Lordships of Hon'ble Supreme Court in the case of CIT vs. B. Bhattachargee & Another (118 ITR 461 at page 477-78) held that "The appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same." Hon'ble ITAT "B" Bench, Lucknow in the case of M/s. Kanchan Singh Bhuli Devi Shiksha vs CIT-1 in ITA No. 706 & 707 (LKW)/2010 in its order dated 12-01-2012 and by the Hon'ble ITAT, Amritsar in its order dated 21-06-2011 in ITA No. 488(Asr)/2010 in the case of M/s Shamsher Jang Bahadur vs ACIT, CC-1, Jalandhar that "The appeal is to be dismissed for want of assessee." Therefore, in the above facts and circumstances as discussed above and in the absence of attendance, it is seen that the assessee is not interested in pursuing the appeal. Accordingly, by applying the ratio laid down by the ITAT Delhi Bench in the case of CIT Vs. Multiplan India (P.) Ltd. [(1991) 38 ITD 320], this appeal filed by the appellant deserves to be dismissed on this score only. However, the case is discussed as per its merits.
Despite above, none appeared on behalf of the assessee before the ld. CIT(A).
It was submitted by the assessee that an adjournment was requested on 28.11.2016.
However, the ld. CIT(A) without considering the application had decided to pass the
order by applying the ratio of CIT Vs. Multiplan India (P.) Ltd. [(1991) 38 ITD 320].
However, it was also the case of the assessee that the ld. CIT(A) has also decided the
appeal on merits and thereafter had confirmed the order passed by the Assessing
Officer. It was urged before the Bench that the order passed by the ld. CIT(A) be set
aside as the order was passed in violation of principles of natural justice.
ITA Nos. 35 to 38/Agr/2017 5
Per contra, the ld. DR had submitted that the order passed by the
Commissioner is in accordance with the law and no interference is call upon, as the
CIT(A) has not only proceeded exparte by invoking the judgment in the case of
Multiplan India, but has also decided the appeal on merits.
We have heard the rival contentions of the parties and have gone through the
material on record. Undisputedly on the date when the assessee was proceeded
exparte, i.e., 28.11.2016, the assessee had made an application seeking adjournment.
However, the ld. CIT(A) has not considered the same and has proceeded exparte
against the assessee and had also passed the order on merits. During the course of
hearing, we have expressed our displeasure in the way the assessee had conducted
itself before the ld. CIT(A) either in the quantum proceedings or in penalty
proceedings and we had expressed to impose cost of Rs.1 lacs in total in all the
appeals. However, on going through the record and considering that on 28.11.2016,
specific application was moved by the assessee for grant of adjournment, which was
turned down by the ld. CIT(A), therefore, we are not imposing any cost on the
assessee. In our view, the ld.CIT(A) should have granted adjournment and should
not have decided the appeal exparte. Even if the ld. CIT(A) was considering to decide
the appeal on merits, then also it was incumbent upon the ld. CIT(A) to consider the
ITA Nos. 35 to 38/Agr/2017 6
amount surrendered by the assessee during the course of search to the tune of Rs.3
crores. Thus, taking into account, the totality of facts and also in the interest of
justice, we are inclined to concur with the plea of the assessee that the assessee was
prevented by just and reasonable cause from appearing in the appeal proceedings
before the ld. CIT(A). As mentioned in many judgments and orders passed by the
Tribunal that ultimate aim of the assessment proceedings is to tax correct income of
the assessee and to decide the taxable income of the assessee. With these
observations, the matter is remanded back to the file of ld. CIT(A) with the direction
to fix any suitable date after giving notice of two weeks to the assessee and
thereafter to pass a reasoned speaking order after affording the opportunity of
hearing and after affording opportunity to produce any document or submission
within the period of six months from the date of passing of this order. In the light of
the above, these appeals are allowed for statistical purposes
In the result, all the appeals are allowed for statistical purposes.
Order pronounced in the open court.
Sd/- Sd/-
(Dr. Mitha Lal Meena) (Laliet Kumar) Accountant Member Judicial member
Dated: *aks*