GOURAV BHAGWANDAS AGARWAL,PUNE vs. ITO WARD 8(1), PUNE

The assessee has raised the following grounds of appeal :- “1. On facts and circumstances of case and in law, the learned CIT(A) (NFAC) erred in dismissing the appeal of appellant for non-prosecution. The appellant prays for just, proper and appropriate relief.

On facts and circumstances of case and in law, the learned CIT(A) (NFAC) erred in confirming addition made by learned AO of Rs.2,91,45,500/- under section 69A of the IT Act 1961. The appellant prays for just, proper and appropriate relief. 3. On facts and circumstances of case and in law, the learned CIT(A) (NFAC) erred in confirming addition made by learned AO of Rs.2,91,45,500/- under section 69A of the IT Act 1961 on the ground that appellant has not explained the details of seizure of cash. The appellant prays for just, proper and appropriate relief. 4. On facts and circumstances of case and in law, CIT(A) erred in confirming addition of Rs.2,91,45,500/- under the head income from other source by ignoring the facts that appellant was not the owner of the money seized. The appellant prays for just, proper and appropriate relief. 5. On facts and circumstances of case and in law, CIT(A) erred in confirming addition of Rs.2,91,45,500/- under the head of income from other sources by ignoring the fact that Mr Seeman George in his affidavit has confirmed that money belongs to him. The appellant prays for just, proper and appropriate relief. 6. On facts and circumstances of case and in law, learned AO erred in not granting credit of tax deducted at source of Rs. 1,55,312/and self- assessment tax of Rs. 5,60,610/- paid by the appellant. 7. On facts and circumstances of the case and law, learned AO erred in charging interest under section 234A, 234B of the Income Tax Act, 1961. 8. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.”

The assessee has also raised an additional ground of appeal which reads as under : “1] The appellant submits that on facts and circumstances of case and in law, assessment proceedings initiated under section 147 of Act as well as assessment proceedings completed u/s 147 r.w.s. 144 of the Act, are invalid, bad in law since the requisite approval / sanction under section 151 of Income Tax Act, 1961 given /granted without application of mind. Accordingly, assessment proceedings so initiated be kindly annulled /quashed and appellant be granted just and proper relief. The appellant submits that the additional ground raised are legal in nature and as all the facts are on record, the assessee requests for admission of the above grounds of appeal.”

Briefly stated the facts as culled out from Form 35 filed before the Ld. CIT(A)/NFAC are that the assessee is an individual and is the proprietor or Ms. Sai Distributors, a proprietor ship firm, carrying on the business of distributorship for Idea Cellular Ltd. His business is based on commission received from Idea Cellular Ltd. For AY 2017-18, the assessee filed his return of income on 07.11.2017 declaring total income at Rs.27,05,140/-. The case of the assessee was reopened based on the information received from the Police authority that they have seized demonetized old currency cash of 3

2. Against all these notices by CIT(A), NFAC, there was no response from the appellant, as has been brought out above, it is evident that the appellant is not interested in filing any details during the appellate proceedings and avail the opportunity under the principle of natural justice. In response to the notices issued, even adjournment was not sought. In such situation, the only conclusion which can be drawn is that the appellant is not interested in pursuing the appeal. 4.3. It has been held by the Hon'ble Supreme Court in the case of B.N. Bhattacharjee and Another (118 ITR 461) that appeal does not mean merely filing of memo of appeal but also pursuing it effectively. In cases where the appellant does not want to pursue the appeal, appellate authorities have inherent power to dismiss the appeal for non-prosecution as held by the Hon'ble Bombay High Court in the case of M/s Chemipol vs. Union of India in Excise Appeal No. 62 of 2009. While deciding the issue, the Hon'ble High Court of Bombay has referred to the observations of Hidayatullah, Chief Justice (as His Lordship then was) in Sunderlal Mannalal Vs. Nandramdas Dwarkadas AIR 1958 MP 260 wherein it was observed:- "Now the Act does not give any power of dismissal. But it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses..." 4.4. This appeal has been filed by the appellant claiming that the action of the Assessing Officer is not supported by facts and laws and that it is unjust. In such a situation, it is for the appellant to furnish submissions with relevant evidence(s), case laws, if any, to support the claim. The 'burden of proof is always on the person who makes the claim, In this case, it is the appellant who has made the claim by filing the appeal. Thus, in cases where a particular receipt is sought to be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable. Where, however, the appellant claims exemption, the burden is on the appellant to prove it to be exempt. Same is the position in case of all allowances, deductions, claims or loss, etc. Since an appeal is nothing but the claim of the appellant that he has been unduly unjustifiably taxed, it is for the appellant to prove its case. The appellant has not availed any opportunity to do so. From the conduct of the appellant as per the facts noted above, it is clear that the appellant does not wish to pursue the appeal. 4.5. Hence, respectfully following the above mentioned judicial pronouncements and in view of the facts of the case, the grounds of appeal filed by the appellant is hereby dismissed. 5.0. In the end result, the appeal of the appellant is hereby dismissed.”

Dissatisfied, the assessee is in appeal before the Tribunal and all the grounds of appeal relate thereto.

The Ld. AR submitted that the non-appearance/non-compliance before the Ld. CIT(A)/NFAC was not deliberate. He submitted that the notices of hearing went unnoticed by the assessee due to lack of access to the email account on which the notices were served. He submitted that the assessee has a strong case on merits and given an opportunity the assessee is in a position to substantiate its case by filing all the requisite details/ documentary evidence before the Ld. CIT(A)/NFAC. He, therefore, prayed that in the interest of justice, the matter may be restored to the file of the CIT(A)/NFAC to decide

The Ld. DR, on the other hand, heavily opposed the arguments advanced by the Ld. Counsel for the assessee and submitted that despite number of opportunities granted, the assessee never bothered to make any submission before the Ld. CIT(A)/NFAC and also did not comply with the notices issued by the Ld. AO. He accordingly submitted that the order of the Ld. CIT(A)/NFAC dismissing the appeal filed by the assessee should be upheld and the grounds raised by the assessee should be dismissed.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and Ld. CIT(A)/NFAC. It is an admitted fact that despite number of opportunities granted, the assessee did not make any submission for which the Ld. CIT(A) / NFAC dismissed the appeal filed by the assessee. The Ld. AR has submitted that such non-compliance was not intentional but resulted on account of the reasons cited above. It is the submission of the Ld. Counsel for the assessee that the assessee has a strong case on merits and given an opportunity, the assessee is in a position to substantiate its case by filing the requisite details before the Ld. CIT(A) / NFAC. The appellate order reveals that the Ld. CIT(A)/NFAC has applied the decision of the Apex Court in the case of CIT Vs. B.N. Bhattarcharjee and Another, 10 CTR 354 (SC) and the Hon’ble Bombay High Court in the case of M/s. Chemipol Vs. Union of India in Excise Appeal No. 62 of 2009 and dismissed the appeal of the assessee for non-prosecution without himself going into the merits of the case. No doubt, the Ld. CIT(A)/NFAC may decide the appeal ex- parte where the assessee does not prosecute his appeal in spite of several opportunities. None-the-less, he has to adhere to the legislative mandate enshrined in sub-section (6) of section 250 of the Act which requires him to state the points for determination, the decision thereon and the reason for the decision. Thus, in our view, his order is in violation of the provisions of section 250(6) of the Act.

Considering the totality of the facts of the case and in the interest of justice and without going into the merits of the appeal, we deem it fit and proper to set aside the impugned order of the Ld. CIT(A)/NFAC and restore the issues raised by the assessee back to file of the Ld. CIT(A)/NFAC with a direction to decide the same on merits as per fact and law, after giving one final

In the result, the appeal of the assessee is allowed for statistical purposes.

अपील र्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The Pr. CIT concerned. 4. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, “ए” बेंच, पुणे / DR, ITAT, “A” Bench, Pune. 5. ग र्ड फ़ इल / Guard File.