RAM BABU JHALANI,JAIPUR vs. ITO, WARD 1(4), JAIPUR, JAIPUR

2.2 The ld. AR of the assessee appearing in the appeal submitted that the assessee is a senior citien and the delay of 151 days has occurred as mobile phone connection of assessee had already been disconnected and Ram Babu Jhalani vs. ITO the assessee being a person of old age not in habit of checking the emails. Considering the decision of Hon’ble 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 adopt the liberal approach in deciding the petition for condonation as the assessee is not going to achieve any benefit from the delay and in fact, the assessee is at risk. 2.3. In the course of hearing, the ld. DR objected to assessee’s application but at the same time prayed that Court may decide the issue as deemed fit and proper in the interest of justice.

2.4 We have heard both the parties and perused the material available on record. The Bench notes the plea that the mobile phone connection was disconnected and due to old age the assessee was not in habit of checking the email for the notices so received and thereby the order was passed ex- parte, which came to his knowledge only when TRO notice was received by him for the demand, so confirmed. Ld. AR for the assessee has filed his own affidavit to the effect that he never received any intimation from Ld. CIT(A) above passing of impugned order.

This resulted in a delay of 151 days. Considering the overall facts included age of the assessee, he being senior citizen, and affidavit of AR we Ram Babu Jhalani vs. ITO condone the delay of 151 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.

Ram Babu Jhalani vs. ITO Based on this information a satisfaction note u/s 147 of the Act was recorded and got approved from the Pr. Commissioner of Income- Tax, 1, Jaipur vide letter dated 29.03.2019 to issue notice u/s 148 of the Act. Upon approval, notice u/s. 148 was issued on 30.03.2019 and served upon the assessee through speed post on 30.03.2019. In response the assessee did not file any ITR. 4.1 As is evident from the record during the course of search operation in Siyaram Group (Satish Katta) (DOS 31.07.2012), inquiry conducted by the DDIT(Inv.)-II, Jaipur on the specific documents seized above ‘ Pratigya Patra' (Party No. B/Exhibit A-2/Pages 8-10) regarding loan raised by Ma Sunita Shekhawat from Shri Ram Babu Jhalani (the assessee) Perusal of the 'Pratigya Patra found that it was signed by the assessee as 1ª Party and Ms. Sunita Shekhawat as 2st Party, the sale deed of property at Plot No. P-28, NRI Colony, Jagatpura, Jaipur is a "numaishivikraypatra" and inquiry revealed that the sale deed was only an insurance/collateral against loan of Rs. 4,00,00,000/- raised/obtained by Ms. Sunita Shekhawat against this property from Shri Ram Babu Jhalani (the assessee). 4.2 The ld. AO noted that the DDIT(Inv.)-II, Jaipur in order to verify the facts mentioned above, bank account statements & relevant documentary evidence of property transactions were obtained, and statement of Shri Ram Babu Jhalani vs. ITO Ram Babu Jhalani was recorded u/s 131.In the statement recorded on 06.01.2014, Shri Jhalani accepted that Pratigya Patra in respect of loan transaction and registry of property (Plot No. 28, Rajaangan, NRI Scheme, Pratap Nagar, Jaipur) were executed on same date i.e. 12/08/2011. He stated that Rs. 94,00,000/- was given by Shri Shyam Sunder Khandelwal to Ms. Sunita Shekhawat against purchase of said property. In the statement recorded on 08.10.2013, Shri Ram Babu Jhalani stated that the sale of property as per sale deed dated 12.08.2011 was not an actual sale of property, it was executed only to securitize the loan amount of Rs. 4 crores which was to be given by Shri Shyam Sunder Khandelwal to Ms. Sunita Shekhawat. He further stated that as per mutual agreement, Rs. 4 crores were to be given as loan by Shri Shyam Sunder Khandelwal to Ms. Sunita Khandelwal in the form of sale consideration of said property and he put on his signature in faith along with two other witnesses and Ms. Sunita Shekhawat on 'pratigyapatra'. The transaction of balance loan amount of Rs. 3,06,00,000/- between Shri Shyam Sunder Khandelwal and Ms. Sunita Shekhawat was not made before him and it was agreed that whenever transaction of balance loan of Rs. 3,06,00,000/- was to be made and the 'pratigyapatra' would be handed over to Shri Shyam Sunder Khandelwal.

Ram Babu Jhalani vs. ITO 4.3 In effect, Shri Ram Babu Jhalani stated that while the sale deed was executed in respect of the said property, the amount of Rs. 4 crores was actually not given to Ms. Sunita Shekhawat. This line of reasoning given by Shri Jhalani was considered a self-serving statement aimed to denying the execution of transaction recorded in the Pratigya Patra. The said document was found to be an irrefutable evidence of a colorable device created to camouflage the actual exchange of a cash loan, against mortgage of property by entering into a registered sale deed which was reversible, as recorded in the Pratigya Patra, subject to repayment of the loan amount of Rs. 4 crores. It was noted that there was no actual sale transaction of property, but it was done only for security purposes of loan transaction and tried to hide the loan transaction of Rs. 4 crore. 4.4 There were no signatures of Shri Shyam Sunder Khandelwal also known as Shyam Sunder Khatoria on the 'Pratigya Patra' for that Shri Ram Babu Jhalani claimed that the same was made for loan transactions of Rs. 4 crores between Shri Shyam Sunder Khandelwal and Ms. Sunita Shekhawat. Ld. AO considered that amount of Rs. 4 crores belonged to Shri Ram Babu Jhalari himself, which was given by him as loan to Ms. Sunita Shekhawat. Ld. AO also noted that as a security of loan of Rs. 4 crores, sale deed of Ms. Sunita Shekhawat's property situated at Plot No. Ram Babu Jhalani vs. ITO 28, Rajaangan, NRI Scheme, Pratap Nagar, Jaipur was executed on same day i.e. 12.08.2011, in the name of Shri Shyam Sunder Khandelwal who is a close relative of Shri Ram Babu Jhalani. 4.5 Opportunity of being heard was provided to the assessee vide notice u/s 142(1) dated 03.05.2019 enclosing therewith certain queries which was not made availed by the assessee. Again, hearing was fixed on 07.06.2019 by issuing another notice u/s 142(1) on 31.05.2019 which also not availed by the assessee. Due to change of incumbent, further opportunity by issuing notice u/s 142(1) dated 19.09.2019 also was given by the AO which also remained non complied with. Again, notice u/s 142(1) was issued on 18.10.2019 for fixing the date of hearing on 25.10.2019 but the assessee did not appear nor filed any reply. Thereafter in view of limitation issue, a show cause notice was issued on 28.11.2019. Since no reply from the assessee received, ld. AO was left with no option except to make addition of the loan amount of Rs. 4,00,00,000/-. Accordingly, addition of Rs. 4,00,00,000/- was made u/s 69A of the Act. 4.6 Ld. AO on the aforesaid advances of Rs. 4,00,00,000/- given on 12.08.2011 estimated interest @ 1.5% per month receivable from Ms. Sunita Shekhawat. However, through show cause notice dated 28.11.2019 the assessee was asked that interest on loan advanced to Rs.

Ram Babu Jhalani vs. ITO 4,00,00,000/- computed (for 8 months) @ 1.5% per month to Rs. 48,00,000/- should not be added to his income. But, the assessee did not file any reply. Therefore, in view of the given facts, the interest earned amounting to Rs. 45,87,097/- (computed for 7 months 20 days @ 1.5% per month) on account of given unaccounted loan in Cash was added back to total income of the assessee u/s 56 of the Act for the year under consideration. 4.7 Ld. AO noted on persual of ITS details that during the year the assessee had purchased two immovable properties for total consideration of Rs. 1,74,51,618/- (9006776+8444842). No computation of the transactions was shown for taxation by the assessee; therefore a show cause notice was issued on 28.11.2019 for filing reply by 02.12.2019. As no reply was received from the assessee to the above show cause notice ld. AO left with no option but to make addition of Rs. 54,86,295/- u/s 69A of the Act. 4.8 Ld. AO noted that the assessee held 03 bank accounts in different banks and made total cash deposits to the tune of Rs. 1,49,89,000/-. Since, the assessee did not file any reply to the queries raised during the assessment proceedings, finally a show cause notice u/s 144(1) was issued on 28.11.2019 proposing to make the addition of Rs. 69,09,000/-.

Ram Babu Jhalani vs. ITO Since the assessee did not file any explanation the addition of Rs. 69,09,000/- was made u/s 69A of the Act. 4.9 On the bank account maintained by the assessee he earned interest of Rs. 51,955/-. Vide show cause notice dated 28.11.2019 assessee was asked to the explained the offering of the said interest of Rs. 51,955/-(Rs. 49,389/- in ICICI Bank and Rs. 2,566/-in integral Bank). Since the assessee did not file any reply so as to explain the income addition of interest of Rs. 51,955/- was considered as unexplained income.

5. Aggrieved by the order of Assessing Officer, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised, the relevant findings of the ld. CIT(A) are reiterated here in below: “4. Observations, findings and Decision: 4.1. Non-compliance of notice u/s 250 of the Act: 4.1.1 The appellant filed form 35, grounds of appeal and assessment order at the time of filing of appeal. However no written submission was filed in response to the notice of hearing u/s 250 of the Act issued 4 times to the appellant as per the table below: Sr. No. Date of notice issued Date of hearing Mode of Remarks service 1.. 24.12.2020 08.01.2021 Serve by No response ITBA/email 2. 26.10.2023 002.11.2023 Serve by No response ITBA/email 3. 08.02.2024 15.02.2024 Serve by No response ITBA/email 4. 20.02.2024 27.02.2024 Serve by No response

4.1.2 It may be seen from the table above that the appellant had been given ample opportunities and time by way of issuing notices as detailed above but the appellant had neither responded to the notices nor filed any written submission in compliance to such notices issued. NFAC has on 4.11.2022 has sent a enablement communication to the appellant by virtue of which the appellant can at any time thereafter could submit their reply/written submission in support of their appeal even if there is no notice u/s 250 of the Act was issued or the timeline for submission of appeal has expired. As on date of finalizing the appeal, no response is visible in the system. Therefore, I have no other option than to dispose of the case as pee information available on record.

4.1.3 It is the well-settled dictum of law "VIGILENTIBUS, NO DORMENTIBUS, JURA SUBVENIUNT" which means the law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim once right she/he must be watchful of his/her rights. Only those persons, who are watchful and careful of using his/her rights, are eligible for the benefits of the law. Law confers rights on persons who are vigilant of their rights. In this connection, the various judicious decisions of the Hon'ble Courts may be cited. In the case of TukojiraoHolkarvs CIT (223 ITR 480) the Hon'ble M.P. High Court held that, "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 Dewan Oil Mills Vs. CIT reported in (2008) 2961TR495 (P&H) had returned the reference unanswered, since the assessee remained absent and there was no assistance from the assessee. In the case of CIT vs B. N. Bhattacharya. (118 ITR 461) (Pages 477, 478), the Hon'ble Supreme Court held that "appeal does not mean, the mere filing of the memo of the appeal but effectively pursuing the same". The Hon'ble Delhi High Court in the case of CIT vs Gold Leaf Capital Corporation Ltd on 02.09.2011 in of 2009 held that a negligent appellant should not be given many opportunities just because the quantum of the amount involved is high. The necessary course of action is to draw an adverse inference, otherwise, it would amount to giving a premium to the appellant for his negligence. When the appellant is non- cooperative, it can safely be concluded that the appellant did not want to adduce evidence as it would expose the falsity and non-genuineness of his claim. The Hon'ble ITAT. Delhi in the case of Whirlpool India Ltd vs DCIT (ITA No.2006/Del/ 2011 dated 19.12.2011) has dismissed the appeal for non-attending hearing inferring that the appellant is not effectively pursuing the appeal.

4.1.4. In this regard, the decision of the Hon'ble High Court of Mumbai in the case of M/S Chemipolvs Union of India, Central Excise Appeal No.62 of 2009 may further be referred to wherein the Hon'ble Court clearly held that every court, judicial Body of Authority, which has a duty to decide a case between two parties, inherently possesses the power to dismiss the case in default. A relevant extract of the decision rendered by the Hon'ble High Court at Mumbai in the said case is extracted below:

“ (i)…………………………………..

(ii) While not inclined to depart from the view taken by the two High Courts, reference must be made to Sunderlal vs. Nandramdas AIR 1958 MP 260, where it was observed that though the act does not give any power of dismissal, 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. This was approved in Dr. P. NalliaThampyvs Shankar (1984(Supp) SCC63). In New India Assurance vs. Srinivasan (2000) 3 SCC 242, it was held that every Court or judicial body or authority, which has a duty to decide lies between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or judicial or Quasi- judicial Body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complaint who had instituted the proceedings That is not a function of the Court or for that matter of a judicial or quasi-judicial body. In the absence of the complaint, therefore, the court will be well within the jurisdiction to dismiss the complaint for non-prosecution (iii) Accordingly, though the rule conferring power on the tribunal has been struck down, one cannot altogether lose sight of the rule that every court or tribunal has an inherent power to a proceeding for non-prosecution when the petition/appellant before it does not wish to proceed the proceeding. In such a situation unless the stafute clearly requires the court or tribunal to hear the appeal/proceeding and decide it on merits, it can dismiss the appeal/proceeding for non-prosecution. The power must be exercised judiciously and after taking into consideration all the facts and circumstances of the case."

4.1.5. In view of the facts of the appellant under consideration and various judicious decisions cited above, I am of the considered opinion that the appellant is not willing to pursue the appeal and reserve his rights only by the mere filing of the memo of the appeal. Since the appellant has chosen not to proceed with the 4.2. Observations, findings and decision of merit:

4.2.1 While non-compliance may be reason enough to dismiss the appeal, I think it would be appropriate to decide the case on its merit for the sake of justice. The appellant has raised five grounds of appeal against the action of the assessing officer (hereinafter referred as the AO) of total addition of Rs. 5,70,34,347/-.

4.2.2 The appellant has challenged the addition of Rs. 5,70,34,347/- without submitting any evidence or counter arguments in support of its claims. Mere claiming that the AO erred in making the additions does not give an edge to the appellant. It is observed from the assessment order that the Id AO has dealt with all the issues in details considering the report received from the DDIT(Inv.)-II, Jaipur. It is undisputed that the appellant was given sufficient opportunities by the Id AO as detailed in the assessment order to explain each head of additions so made but he failed to explain the same with cogent evidence before the Id AO. Thus, the principle of natural justice was well followed by the Id AO as evident from the assessment order. Hence, the AO has no option but to add the total discrepancy amounts in the total income of the appellant. Further, during the course of appellate proceedings, no reply has been filed by the appellant inspite of four hearings giving the concrete impression that the appellant has nothing to say or any explanation whatsoever with regard to the additions so made under different heads. Moreover, as the case is quit old, therefore, in my view, allowing further time would not make any difference to the status of the case but cause delay in delivery of justice. Keeping in view all the stated facts and discussions, I find no reason in altering the additions made by the AO. In view of this, all the grounds raised by the appellant are dismissed.

Resultantly, the appeal filed by the assessee is disposed for, statistical purposes. Order pronounced in the open court on 21/01/2025.