SH. ABHAY KUMAR GODHA,JAIPUR vs. ACIT, CIRCLE-1, JAIPUR, JAIPUR

SHRI ABHAY KUMAR GODHA VS ACIT, CIRCLE-1, JAIPUR 5.4 Since, the assessee did not explain the source of cash deposit after giving various notices as well as specific notice regarding cash deposit, therefore, notice u/s 142(1) of the Act annexing show cause notice had been issued to the assessee by the AO on 04.12.2019 fixing the date for furnishing submission by 06.12.2019. 5.5 The AO had considered the reply of assessee and not found tenable as the assessee was only trying to distract from the facts of the case. 5.6 On perusal of the assessment order, it has been noticed that earlier in the case of the assessee search u/s 132 of the IT Act, 1961 was conducted on 23.05.2013. In search certain documents/diary was found in which the amount taken from various persons were found noted. The assessee offered all such amounts and filed application u/s 245C declaring income of Rs 6.91 crore before ITSC, New Delhi. Thereafter, the Settlement Commission passed final order u/s 245D(4) dated 29.09.2016 by making addition of Rs. 62,55,140/- and thereby assessed the total Income at Rs. 7.5 crore. Thereafter, in pursuance to rectification application the Settlement Commission passed order u/s 245D(6B) dated 17.02.2017 assessing the total income at Rs. 7.5 crore. Along with the order the Settlement Commission had prepared an inflow-outflow statement, as per which the excess of inflow (surplus) was available to the tune of Rs. 7,84,69,614/- as on 31st March 2014. As per the assessee cash of Rs.87,21,500/- on 27.12.2016 was deposited in the bank account out of the cash inflow available with him as per the order passed by the ITSC 5.7 Further, it is noticed that the AO had clearly mentioned in the assessment order that the assessee had furnished revised inflow-outflow of undisclosed transactions whereas the assessee did not state that the income was under which head of income, whether it was held as cash or not. Further, the assessee did not furnish any cash flow statement as well as cash book so that position of cash balance as on 08.11.2016 could be justified. Under these circumstance, the cash deposit being SBNs were treated by the AO as unexplained, as the assessee had failed to establish the source of such cash deposits, the AO was justified to make an addition of Rs.87,21,500/- considering the unexplained income of the assessee u/s 69A of the 1.T.Act, 1961. The assessee has also not made any submission in this regard during the course of appellate proceedings. 5.8 Further AO had also disallowed the Employee's contribution towards Provident Fund and ESI payment of Rs.2,05,049/- u/s 36(1)(va) of the I.T.Act, 1961 as the same were deposited in the Central Government Account after the prescribed due dates. This issue in the ground of appeal is with respect to the disallowance of delayed deposit of employee's contribution of PF & ESI. The Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. and others vs. CIT and others has held that the contribution by the employees to the SHRI ABHAY KUMAR GODHA VS ACIT, CIRCLE-1, JAIPUR relevant funds is the employer's income under Section 2(24)(x) of the IT Act and the deduction for the same can be allowed only if such amount is deposited in the employee's account in the relevant fund before the date stipulated under the respective Acts. Thus, the deduction under Section 36(1) (va) of the IT Act can be allowed only if the employees' share in the relevant funds is deposited by the employer before the due date stipulated in respective Acts. As the appellant has failed to make compliance of the provisions of section 36(1)(va) of the I.T.Act, 1961 r.w.s. 2(24)(x) of the I.T.Act, 1961, the AO was justified to disallow the deduction of Rs.2,05,049/- u/s 36(1) (va) of the I.T.Act, 1961. 5.9 The appellant has remained noncompliant at the appellate stage also, without taking the chance to represent his case. Such non-compliance at every stage indicates that the appellant has no explanation to offer in the matter and there is no factual basis of the claims made in the grounds of appeal and I am constrained to agree with the decision of the AO to the additions of Rs. 89,26,549/- 5.10 In this connection I take support from a judgement of the Hon'ble ITAT Agra Bench in the case of Shivangi Steel (P.) Ltd. v. Assistant Commissioner of Income tax, Central Circle, reported in [2014] 42 taxmann.com 393 (Agra Trib.), where it has been held that Section 251, read with section 144, of the Income-tax Act, 1961-Commissioner (Appeals) Powers of [Exparteorder] Assessment year 2005

06. Despite several notices issued under sections 143(2) and 142(1), assessee did not attend assessment proceedings, nor filed any explanation - Assessing Officer, therefore, passed an exparte assessment order under section 144 on assessee Further assessee in spite of large number of adjournments granted by Commissioner (Appeals) did not produce any document in respect of grounds of appeal, nor made written or oral submissions before him Commissioner (Appeals), therefore, proceeded ex parte against assessee and confirmed assessment order -Whether both Commissioner (Appeals) and Assessing Officer rightly proceeded ex parte against assessee Held, yes [Para 6] [In favour of revenue] Section 254 of the Income-tax Act, 1961 read with rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963 Appellate Tribunal Powers of [Powers to admit additional evidence) Assessment year 2005-06-Assessing Officer passed an exparte assessment order under section 144 on assessee - Commissioner (Appeals) in absence of any co-operation from side of assessee proceeded exparte against assessee and confirmed assessment order - Against order of Commissioner (Appeals), assessee filed appeal before Tribunal - It also moved application under rule 29 of Appellate Tribunal Rules, 1963 for admission of additional evidences - Whether since assessee had not made out any case that authorities below had decided case without giving sufficient opportunity to adduce evidence, requirement of rule 29 had not been satisfied - Held, yes Whether, therefore, above application was liable to be rejected Held, yes [Para 7] {In favour of revenue} SHRI ABHAY KUMAR GODHA VS ACIT, CIRCLE-1, JAIPUR Following the above discussion, I uphold the additions made by the AO. Thus, grounds of appeal 1, 1.1, 1.2, 1.3 & 2 are hereby dismissed.

6. In the result, the appeal is treated as dismissed.’’ 3.2 During the course of hearing, the ld. AR of the assessee submitted that he could not comply with the notices of the ld.CIT(A) nor adduced the arguments/ written submission to counter the addition as made by the AO in the assessment order for the reason that the notices issued by the ldCIT(A) were not received as per E-mail address given in Form 35. It is pertinent to mention that the correct E-mail address as per Form 35 is anuhal@kalanico.com. but the notices sent by the ld. CIT(A) were at E-Mail address erosjewelryinternational@gmail.com . Hence the assessee could not respond to the notices issued by the ld. CIT(A). The ld. AR of the assessee prayed before the Bench to restore the matter to the file of the ld. CIT(A) for afresh adjudication so that the assessee may be in a position to argue the case before the ld CIT(A). 3.3 On the other hand, the ld. DR did not object to the submission of the ld. AR of the assessee. 3.4 We have heard both the parties and perused the materials available on record. In this case, it is noticed that the AO made an addition of SHRI ABHAY KUMAR GODHA VS ACIT, CIRCLE-1, JAIPUR Rs.87,21,500/- u/s 69A of the Act as the assessee failed to establish the source of cash deposits made in the Bank of Baroda during demonetization period. Further the AO had also disallowed the Employee’s Contribution towards Provident Fund and ESI payment of Rs.2,05,049/- u/s 36(1)(va) of the Act as the same were deposited in the Central Govt. Account after the prescribed due dates. Thus the AO made total addition of Rs.89,26,549/- in the hands of the assessee. In first appeal, the ld. CIT(A)has confirmed the action of the AO as the assessee was non-compliance at the appellate stage in spite of notices sent to the assessee. However, during the course of hearing, the ld. AR of the assessee submitted that the ld. CIT(A) had sent the notices at wrong E-mail address and thus he could not comply with the notices. Hence, in this view of the matter, the Bench feels to restore the matter to the file of the ld. CIT(A) for afresh adjudication of the appeal of the asssssee but by providing adequate opportunity of hearing to the assessee and the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 3.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as SHRI ABHAY KUMAR GODHA VS ACIT, CIRCLE-1, JAIPUR having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law. 4.0 In the result, the appeal of the assessee is allowed for statistical purposes Order pronounced in the open court on 21/07/2025. Sd/- Sd/- ¼Mk0 ,l- lhrky{eh ½ ¼jkBksMdeys'kt;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@Judicial Member ys[kklnL;@Accountant Member