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Facts
The assessee filed an appeal against the order of the CIT(A) which dismissed the appeal due to non-prosecution. The assessee claimed the addition of Rs 16,82,456 was on account of a housing loan, but failed to provide supporting documentary evidence. The assessee also failed to appear before the CIT(A) and respond to notices.
Held
The Tribunal noted that the assessee failed to provide evidence for the housing loan and did not diligently pursue the appeal. The CIT(A)'s order was ex-parte. The Tribunal set aside the CIT(A)'s order and restored the appeal to the CIT(A) for fresh disposal on merits, with an opportunity to the assessee to present evidence and submissions.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal for non-prosecution without considering the merits, and whether the assessee provided sufficient evidence for the claimed housing loan.
Sections Cited
250, 68, 115BBE, 143(3), 263, 144B, 46A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: SHRI GEORGE MATHAN & SHRI RAKESH MISHRA
PER RAKESH MISHRA, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2017-18 dated 10.10.2024. 1.1 The Registry has not pointed out any delay in filing the appeal. However, the assessee has filed an application along with an affidavit for condonation of delay, if any, in filing the appeal before the Tribunal. The order of the Ld. CIT(A) was passed on 10/10/2025 and the appeal has been filed on 05/12/2025. However, in the Form No. 36, the date of receipt of the order of the appellate authority is stated by 19/11/2025. The reasons for the delay are stated to be the resignation of the previous accountant, serious medical condition of his wife who has been suffering from Young Onset Parkinson’s disease, the assessee’s own health and the appointment of a new accountant. It is ITA No.: 2981/KOL/2025 Assessment Year: 2017-18 Rajeev Kejriwal. stated that the accountant noticed the appeal order of the Ld. CIT(A) on 20/11/2025, and thereafter, the appeal was filed in time. The assessee has prayed in the interest of justice for condonation of delay, if any, in submitting the appeal. On going through the petition seeking condonation of delay, we are satisfied that the assessee had sufficient cause for the delay, the delay is condoned and the appeal is admitted for adjudication.
The assessee is in appeal before the Tribunal raising the following grounds of appeal:
“1. THAT THE CIT (APPEAL), NFAC WAS NOT JUSTIFIED IN SUSTAINING ADDITION OF Rs 1682453 treating the same as income though it represented outstanding housing loan from Tata Capital Housing Finance Ltd.
That the CIT (appeal) passed the order without considering the facts of the case and thus flagrantly violated the principals of natural justice.
That the appellant could not make compliance to notices issued by Ld. CIT (appeal) as the appellant and his wife Smt. Sangita Kejriwal were quiet indisposed.
That the ITO was not justified in making addition u/s 68 and charging tax u/s 115BBE.
That the appellant craves leave to modify or make any addition on our before the final date of hearing.”
Brief facts of the case are that the assessee is an individual and had filed his return of income showing total income of ₹17,80,400/-. During the year under consideration, the assessee received interest on capital amounting to ₹16,26,400/-, share of profit of ₹2,68,27,672/- and remuneration of ₹5,00,000/-. The case was selected for scrutiny under Computer Assisted Scrutiny Selection (in short 'CASS') and the assessment was completed on the total income of ₹24,18,340/- u/s 143(3) of the Act vide order dated 29.11.2019. Subsequently, the assessment order was revised vide order u/s 263 of the Act dated ITA No.: 2981/KOL/2025 Assessment Year: 2017-18 Rajeev Kejriwal. 25.03.2022 with the direction to the Ld. AO frame the assessment afresh. Subsequently, the order u/s 143(3)/263/144B of the Act was passed after making the addition of ₹16,82,456/-. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A) who issued three notices for hearing but the same were not complied with. In the appeal order, the Ld. CIT(A) has reproduced the assessment order from page 3 to 17 of the appeal order and has dismissed the appeal of the assessee on account of non-prosecution.
Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.
None appeared on behalf of the assessee and the case was heard with the assistance of the Ld. DR. In this case, the assessee had filed an application for early hearing which was allowed and on the same date the appeal was also heard. The assessee submitted that adequate opportunity was not provided before the Ld. CIT(A) and the appeal has been dismissed primarily on account of non-prosecution. The Ld. DR on the other hand, requested that the order of the Ld. CIT(A) may be confirmed.
We have considered the facts of the case, the submissions made and the documents filed. The Ld. CIT(A) has disposed of the appeal by giving his finding as under: “6.3 As brought out above, during the present appellate proceedings, the appellant did not furnish any documentary evidence substantiating his contention. The appellant was afforded with ample opportunities to file its submissions but it could not produce any documents explaining the home loan liabilities.
4 While filing the appeal, in its Statement of Facts, the appellant stated as under: ITA No.: 2981/KOL/2025 Assessment Year: 2017-18 Rajeev Kejriwal. "The loan was taken jointly by Rajeev Kejriwal termed as assessee, Sanjay Kejriwal and Sandip Kejriwal form Tata Capital Home Loan. This Loan was taken for the property jointly acquired and situated at Flat No D. 1st Floor, Block 3, Club Town Gateway, 404112, Hatiara Raypara Purba, Kolkata 700157. This Home loan Account no 9203014, was having balance of 16,82,456 as at 31.03.2017 as my share and duly shown in my Balance Sheet as on 31.3.2017. The said property is jointly owned by three members namely Sanjay Kejriwal, Sandip Kejriwal and Rajeev Kejriwal. The loan of Rs 56,55,584 had been taken in the financial year 2013 2014 from tata Capital Housing Finance limited and is divided between the three members mentioned above. Hence one third part of the loan is recorded in the loan and liability side of balance sheet of the assessee. This loan has been taken for the property mentioned in the third line of Asset side i.e. Flat Purchased at Club Town promoted by Landmark Vinimay Pvt Ltd."
5 No evidence was submitted by the appellant in support of his contentions. In absence of any documentary evidence, it is not possible to examine the claim of the appellant and grant any relief. It is settled law that Burden of proof that transaction is genuine lies on the assessee. In the case of Shri Charan Singh vs. Chandra Bhan Singh (AIR 1988 SC 6370), the Hon'ble Supreme Court have clarified that the burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. It has been further held that the party cannot, on failure to establish a prima facie case, take advantage of the weakness of his adversary's case. The party must succeed by the strength of his own right and the clearness of his own proof. In this case, the burden of evidence was on the appellant if he wanted to prove that the impugned amount was on account of home loan. During the assessment proceedings and even during the present appellate proceedings, the appellant has failed to produce any evidence to support his contentions.
6 In the present case, the appellant has not been able to discharge his initial burden of proof. He has completely failed to avail himself of a large number of opportunities provided to him during the appellate proceedings to present his case. Considering all this, I find no reasons to interfere with the findings reached by the AO in the assessment order.
7 Though the appellant did admittedly receive the order passed u/s 143(3) r.w.s. 263 r.w.s. 144B of the Act and duly filed the present appeal, it, however, after filing the appeal, chose not to respond to any of the notices listed above issued by this office. It has been held by several courts that the law assists those who are vigilant and not those who sleep over their rights ITA No.: 2981/KOL/2025 Assessment Year: 2017-18 Rajeev Kejriwal. as found in the Maxim "Vigilantibus Non Dormientibus Jura Subveniunt. The maxim refers to the obligation of individuals to not only be aware of their rights under the law, but also to be vigilant while exercising or using the same, Hence, as an aware citizen, it was incumbent upon the appellant to be aware of the statutory provisions, to simultaneously comply with the requirements of law, and that it should pursue the legal remedies available diligently.
8 The Hon'ble High Court of Delhi, in the case of Moddus Media Pvt. Ltd. vs. M/s Scone Exhibition Pvt. Ltd. (RFA 497/201dated 18 May, 2017), while holding that the appellant ought to be vigilant and pursue the appeal filed by it, had observed as under "
The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance..... After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants.......
9 By his own act, the appellant has failed to remain vigilant and did not avail the opportunity to submit necessary evidence in support of his point of view/contention, as he did not respond to various notices issued. The fact that the appellant did receive the order and filed the present appeal, but chose not to respond to any notices issued by this office clearly establish total disregard to the due process of law. Therefore, the conclusion that the appellant could not controvert the findings given by the AO on merits of the issue either is inescapable.
10 In view of the above, I am of the considered view that the Assessing Officer was justified in addition of Rs. 16,82,456/- in his order passed u/s 143(3) r.w.s. 263r.w.s. 144Bof the Act, and accordingly, the ground of appeal no. 1of the appellant is "Dismissed".
In result, the appeal is "dismissed".”
We have considered the submissions made, gone through the facts of the case and perused the record and the order of the Ld. CIT(A). After examining the facts of the case and the law, we deem it appropriate to set aside the order of the Ld. CIT(A) as the same is ex parte and restore the appeal before the Ld. CIT(A) for disposal of the grounds of appeal taken by the assessee on merit by passing a speaking order. Needless ITA No.: 2981/KOL/2025 Assessment Year: 2017-18 Rajeev Kejriwal. to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission it wants to make in support of its grounds of appeal and shall not seek unnecessary adjournments and rule 46A of the I.T. Rules, 1962 shall also be followed and an opportunity of being heard may be provided to the Ld. AO, if required. Accordingly, all the grounds taken by the assessee in his appeal are partly allowed for statistical purposes.
In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 28th January, 2026. [George Mathan] [Rakesh Mishra] Judicial Member Accountant Member Dated: 28.01.2026 Bidhan (Sr. P.S.) ITA No.: 2981/KOL/2025 Assessment Year: 2017-18 Rajeev Kejriwal. Copy of the order forwarded to:
Rajeev Kejriwal, Millenium City, Floor 14, Room 14C, Tower 2, DN 62, Sector-V, Kolkata, West Bengal, 700091. 2. I.T.O., Ward-33(1), Kolkata.
CIT(A)-NFAC, Delhi.
CIT-
CIT(DR), Kolkata Benches, Kolkata.
Guard File. //// By order