S R AUTOMOBILES,JAIPUR vs. ITO WARD-3(1), JAIPUR

1. 1. That I am the partner of S.R. Automobiles, the assessment of which was completed u/s 143(3) for A.Y 2015-16 by Income Tax Officer, Ward-3(1), jaipur.

2. That an appeal was preferred to the Commissioner (appeals) against this order of assessment, who dismissed the appeal for non-prosecution.

3. That being aggrieved by the order, Seema Godara, (partner), asked the AR of the assessee firm, to file the appeal before the Hon’ble Tribunal.

4. Unfortunately, Smt. Seema godara, died. The matter of filing of appeal was not in my knowledge as work relating to income tax proceeding was exclusively looked after by her.

5. At the time of audit when I visited the AR for certain clarifications, he told me that filing of appeal against the assessment order was not done.

6. He made me deposit the appeal fees and filed Form 36 and copy my signature. He also asked me to bring the original assessment order for filing of the appeal.

S.R. Automobiles, Jaipur 7. That in the meantime, My grand father expired and I came busy in the social and religious rites and forget the report back to my AR.

3.2 The Ld. AR of the assessee appearing in this appeal submitted that the assessee is serious on the duties and the delay of 535 days is on account of due to Seema Godara (partner) died resulted in delay. Considering the decision of the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) wherein it was directed the other courts to consider the liberal approach in deciding the petition for condonation as the assessee is not going to achieve any benefit for the delay in fact the assessee is at risk. 3.3. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the interest of justice.

3.4 We have heard both the parties and perused the materials available on record. The Bench noted that the reasons advanced by assessee for condonation of delay of 535 days are sufficient to condone the delay S.R. Automobiles, Jaipur which has merit. Thus, we concur with the submission of the assessee and condone the delay of 535 days in filing the appeal by the assessee in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee was prevented by sufficient cause.

S.R. Automobiles, Jaipur 4.1 During the assessment proceedings, it was noticed from perusal of audit report of Column No.21D, that the assessee has made purchased in cash amounting to Rs.13,30,000/- from M/s Jai Bajrang Krishi Yantra Udhyog and M/s Shri Kanhaiyalal Ramratan. The assessee was asked to furnish the details of payments/ledger account made to the above mentioned parties, in respect to purchase of automobiles parts in cash. The assessee has failed to furnish the same. Thereafter, vide show cause notice dated 08.08.2017, the assessee was again asked to furnish the explanation with regard to purchase of automobile parts amounting to Rs.13,30,000/-. The assessee has not made any compliance of above show cause notice. In absence of reply of the assessee, it is clear that the assessee had made payment in cash exceeding twenty thousand rupees in a day. As per provisions of section 40A(3) of the high payment is made in a sum exceeding twenty thousand rupees otherwise than by an account payee cheque drawn on a bank or account payee bank draft, no deduction shall be allowed in respect of such expenditure and section 40A(3) is applicable. In view of these facts, expenses amounting to Rs.13,30,000/- is hereby disallowed and added to the total income of the assessee. The assessee has concealed particulars of income and furnished inaccurate particulars of income, therefore, penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961 is being initiated separately on this issue.

S.R. Automobiles, Jaipur 4.2 On perusal of ITS details, it has been noticed that the assessee has received payment on transfer, of certain immovable property other than agriculture land/rent on hiring of plant & machinery amounting to Rs. 1,13,786/- but on perusal of income tax returns & audit report, details of schedule-1 (other receipts), the assessee has shown only Rs 1,03,780/- (53780+50000) on account of rent. The assessee was asked to furnish explanation in respect to difference of Rs.10,006/, vide show cause notice dated 08.08.2017. The assessee has failed to furnish any explanation in this regard. In view of these facts, difference amounting to Rs 10,006/- were not found subject to verification, hence, the same in added to the total income of the assessee. The assessee has concealed particulars of income and furnished inaccurate particulars of income, therefore, penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961 is being initiated separately on this issue.

“5.1 In Grounds of Appeal No. 1 to 5, the appellant has challenged the addition made of Rs. 13,30,000/- u/s 40A(3), addition of Rs. 10,006/-on account of Rent and charging of interest u/s 234A, 234B and 234C of Act. Several opportunities have been allowed to the appellant in terms of the notices fixed for hearing of the appeal under section 250 of the Act issued to the appellant. No compliance has Date of notice Date of hearing fixed Remarks 28.12.2020 12.01.2021 No reply 23.09.2022 30.09.2022 No reply 30.10.2022 09.11.2022 No reply 13.01.2023 20.01.2023 No reply

5.2 Appellant has filed statement of facts with Form 35. The same is reproduced as under:- "STATEMENT OF FACTS Shall be filled at the time of hearing" 5.3 However inspite of numerous opportunities provided, the appellant failed to file any submissions with documentary evidences in respect to sustain the claim made in statement of facts filed with form 35 and the grounds of appeal

6. The aforesaid non compliances reveal beyond doubt that the appellant has nothing to say in the matter of present appeal. Thus, it appears that the assessee is not interested in prosecution of the present appeal and the same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in the well known dictum "VIGILATIBUS, NON DORMENTIBUS, JURA SUBVENIUNT". Considering the facts and relying on the decision of the Hon'ble, ITAT, Delhi Bench, in the case of CIT Vs Multiplan India Ltd. reported in 38-ITD-320 and the judgement of the Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukoji Rao Holker Vs. CWT (1997) reported in 223-ITR-480 the present appeal is hereby dismissed.

7. The appellant has raised grounds of appeal No. 1 to 5 which challenge the additions made by AO of Rs.13,30,000/- u/s 40A(3), Rs.10,006/- on account of Rent and Charging of Interest u/s 234A, 2348 and 234C of Act. However no S.R. Automobiles, Jaipur written submissions were filed in respect of Grounds of Appeal

. It is noted that the appeal of the appellant has been dismissed by me for non prosecution in para

6. In view thereof the various grounds raised in appeal have become academic in nature. Grounds of Appeal No. 1 to 5 are hereby dismissed. GOA no. 5 is general and routine in nature and does not require separate adjudication.

8. As a result, the appeal is dismissed.”

6. As the assessee did not receive any favour from the appeal filed before Ld. CIT(A). The present appeal filed against the said order of the Ld. CIT(A) before us on the grounds as reiterated here in above. To support the grounds so raised the Ld. AR of the assessee has placed reliance on the written submission which is extracted herein below:-

“MAY IT PLEASE YOUR HONOUR, The appellant respectfully begs to submit following facts and details for your honor's kind consideration in support of grounds of appeal already submitted: Facts of the case- The assessee firm deals in automobile parts. It filed its ITR for AY 2015-16 disclosing an income of Rs.25,150/- The case was selected for scrutiny through CASS. From the audit report, the AO noticed that cash purchases of Rs.13,30,000/- had been made by the assessee. The assessee explained that there has been no violation of section 40A(3) as the amount of purchase is the aggregate of cash payments made on different dates. Further, the AO noticed that there is difference in receipt of rent as per ITS details and as shown by the assessee. As the assessee did not get proper opportunity to place his cards, the AO completed the assessment u/s 144 making the impugned additions. The Ld.CIT(A) dismissed the appeal for non-prosecution. Submission on the grounds of appeal - Ground No.1 to 3. The Ld CIT(A) has erred on facts and in law in dismissing the appeal of the assessee for non-prosecution, whereas in view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution, as held by Hon'ble Bombay High Court in CIT vs. Premkumar Arjundas Luthra HUF, (2017) 291 CTR 614 (Bom.)

S.R. Automobiles, Jaipur The Ld.CIT(A) has erred in passing the appellate order without ensuring proper service of the notices of hearing issued by him. The Ld. CIT(A) has erred in passing the appellate order without with out considering the reply of the assessee filed on 27.02.2023. The assessee filed appeal against the assessment order to CIT(A)-1, Jaipur. In Form- 35 (Column-17), it had mentioned the address, e-mail id and the mobile number on which the notices of hearing were required to be sent. The notice of hearing from CIT(A)-1 was received through post, and due compliance of the notice were made. Thereafter, the appeal migrated to NFAC The notices were sent on the portal and on some other mail id, and not to the one mentioned in Form-35. The partners of the assessee firm not being tech savvy, did not know the procedure of logging in into the portal and retrieving the notices. However, the last notice issued on 13.01.2023 was sent on the proper mail id. Compliance of the same was made. The CIT(A) did not give cognizance to the reply of the assessee and passed the order on 28.02.2023 dismissing the appeal of the assessee for non-prosecution, without going into the merits of the case. From the above facts, it is clear that non-compliance of initial notices issued by NFAC were on account of the same not having been sent on the proper mail id and phone number. However, on receipt of notice on the correct and proper mail id and phone number, due compliance was made. The dismissal of the appeal by the Ld.CTT(A) without considering the submission made by the assessee and dismissing it citing non-prosecution is arbitrary and contrary to the facts on record. Your Honors, an appeal is filed with the CTT(A) because it is a higher court that has the authority to review and poteritially overturn a decision made by an AO, allowing a party who feels the AO's ruling was incorrect to seek a re-evaluation of the case based on legal arguments regarding errors in the original decision. The assessee expects relief out of the appeal. The procedure in appeal before the CIT(A) and the powers of the CIT(A) are governed by Sections 250 and 251 of the Act respectively. The relevant provisions for consideration are as under: Procedure in appeal Section 250 (1)……………. (2)……….. (3)…………… (4) The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner (Appeals).

S.R. Automobiles, Jaipur (5) ………… (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. (6A)…………….. (7)………… Powers of the Commissioner (Appeals) Section 251(1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers- (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or anmal the assessment. (aa)…………….. (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty." (c)- (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation. In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner(Appeals) by the appellant.

From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A). then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub section(2)

S.R. Automobiles, Jaipur of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is coterminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non- prosecution as is evident from the provisions of the Act. This view is also taken by the Hon'ble Bombay High Court in case of CIT vs. Premkumar Arjundas Luthra HUF (2017) 297 CTR 614 (Bom.). A bare glace of the order of the CIT(A) shows that CIT(A) has not addressed itself on the various points placed for its determination at all and dismissed the appeal of assessee for default in non-appearance. Needless to say, the CIT(A) plays role of both adjudicating authority as well as appellate authority. Thus, the CIT(A) could not have shunned the appeal for non-compliance without addressing the issue on merits. Again in the case of Pawan Kumar Singhal v. ACIT [2019] 108 taxmann.com 548 (Delhi-Trib.), the Delhi ITAT held that Commissioner (Appeals) cannot dismiss assessee's appeal in limine for non-prosecution without deciding same on merits through an order in writing. stating points of determination in appeal, decision thereon and reason for decision.

10. In the case of Ms. Swati Pawa v. DCIT [2019] 103 taxmann.com 300 (Delhi Trib), the Delhi ITAT held that in terms of Section 250, Commissioner (Appeals) is not empowered to ismiss appeal for non-prosecution and is obliged to dispose of appeal on merits by passing a speaking order. In the case of HV Metal ARC (P.) Ltd. v. ACIT [2018] 100 taxmann.com 4 (Delhi - Trib.), the Delhi ITAT held that where Commissioner (Appeals) dismissed assessee's appeal on ground that assessee did not wish to pursue appeal, since revenue failed to bring any evidence to prove actual service of notice of hearing on assessee, S.R. Automobiles, Jaipur requirements of procedure as mentioned in Section 250(1) and (2) could not be said to have been fulfilled and, thus, impugned order was to be set aside. In the case of Nisarhusen Amdali Lakhani (ITA 532/Ahd/2018), ITAT Ahmedabad observed as under: "We straightway refer to Section 250(6) of the Act which enjoins that the CIT(A) shall state the points for determination before it and the decision shall be rendered on such points along with reasons for the decision. Thus, it is incumbent upon the CIT(A) to deal with the grounds on merits even in ex pane order. In view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution. In view of the above facts, it is prayed that in order to render substantial justice to the assessee, the case may be restored to the file of the AO.”

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S.R. Automobiles, Jaipur 9. Per contra, Ld. DR objected to the prayer of the assessee and submitted that even the assessee did not represent case before the ld. AO and therefore, in that case the Bench feels the matter may be restored to the file of the Assessing Officer.

10. We have heard both the parties and perused the materials available on record. The bench noted from the order of ld. CIT(A) that the appeal of the assessee was dismissed by the ld. CIT (A) for want of non- prosecution of the appeal. The assessee did not appear or filed any reply to the notices which were issued by the ld. AO during the assessment proceedings, finally the assessee completed ex-parte assessment. However, the Bench feels that the assessee because of any reasons could not advance his arguments/submissions to contest the case before the lower authorities and the ld. AR for the assessee also prayed to give one more opportunity to submit the evidences concerning the issue in question, with grounds so raised by the assessee, to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings before the ld. AO.

Order pronounced in the open Court on 05/05/2025.