SUBHASH MURARKA, RAIPUR,RAIPUR vs. INCOME TAX OFFICER, WARD-1(1), RAIPUR, RAIPUR

We have perused the Form No. 35, and therein it is evident that contentions made by the Ld. Counsel for the assessee regarding non- receipt of communication/notices through e-mail is very much true and correct, therefore, all such communications including notices/orders everything went unnoticed which resulted in said delay of 520 days.

6. We take guidance from the following decisions: i. Vidya Shankar Jaiswal Vs. ITO, Ward-2, Ambikapur, Civil Appeal Nos……………../2025 [Special Leave Petition (Civil) Nos. 26310- 26311/2024, dated 31.01.2025, ii. Hon’ble High Court of Chhattisgarh in the case of Jagdish Prasad Singhania Vs. Additional Commissioner of Income Tax (TDS), Raipur (C.G.), TAX Case No.17/2025, dated 24.02.2025, iii. Hon’ble Supreme Court in the case of Inder Singh Vs. the State of Madhya Pradesh, Civil Appeal No…………/2025, Special Leave Petition (Civil) No.6145 of 2024, dated 21st March, 2025.

In all the above referred judgments, the core issue is that while deciding the grounds of limitation the authorities have to maintain a judicious and liberal approach.

7. Having said so, in the present case as we have examined such delay was caused without the fault of the assessee. Therefore, the delay of 520 days is hereby condoned and the matter is taken up as heard on merits.

“During the course of assessment proceedings it was seen that assessee has introduced Capital to the tune of Rs.1,94,50,000/- Assessee was asked to file the detail of the same along with evidences vide notice u/s 142(1) dated 26/07/2019. Vide his submissions assessee stated that he has Introduced Rs.1.94.50,000/- as Capital which has been taken from various persons as unsecured loans. The list of 35 such creditors alongwith confirmation, copy of bank statements reflecting both debit and credit entries, were filed by the assessee. Scrutiny of this list, revealed that in the following cases, cash has been deposited in respective bank account before making payment of loan by the Creditor. Sl Name of the PAN of Amount Date of Name of Amount Date of Remarks No. Creditor Account of Credit Bank/Account Cash/ Cash/ Holder Credit No. Cheque cheque deposited deposited 1 RajuJanghels AANHR1 400000 6/10/20 Union Bank of 400000 6/10/2016 By cash & Sons HUF 694E 16 India 3270020108192 93 2 Ram AVKPJ40 500000 3/10/20 Union Bank of 500000 3/10/2016 By cash CharanJanid 90J 16 India 3270020108200 48 3 DevanandSahu BKOPS8 500000 6/10/20 Union Bank of 500000 6/10/2016 By cash 817G 16 India 3270020100481 27

4 DevanandSahu AAGHD3 500000 6/10/20 Union Bank of 500000 6/10/2016 By cash HUF 853C 16 India 3270020108184 75 5 HemlalSahu EGPPS35 500000 6/10/20 Union Bank of 500000 6/10/2016 By cash 59K 16 India 3270020108199 03 6 RanvindraJang AGQPJ30 500000 6/10/20 Union Bank of 500000 6/10/2016 By cash id 69A 16 India 3270020108148 95 7 ReenaSahu EMLPS1 500000 8/10/20 Union Bank of 500000 8/10/2016 By cash 761M 16 India 3270020108202 02 8 Sandeep CTLPK6 500000 29/10/2 Union Bank of 500000 29/10/201 By cash Kumar 803M 016 India 6 4968028100179 19 9 Sanjay Tiwari ABPPT92 1000000 28/10/2 State Bank of 32000 289/10/20 By cash 72M 016 India 16 9(Open. 31701322885 Bal 97200) 10 Yuwak Ram CMXPS9 500000 23/09/2 State Bank of 500000 23/09/201 By cash Sahu 086B 016 Patiala 6 65075989037 11 SushmaJAL BEFPJ80 500000 7/10/20 Bank of 500000 7/10/2016 By cash 54K 16 Baroda/457501 00003219 Total Cash 4932000 Deposit

The credit worthiness of these creditors are also got proved. Field Enquires were also conducted by this office.

It was seen that these people were not economically sound and were earning a very meagre income. The details furnished in respect of these persons reveal that:

2. Credit has been made vide a single entry in the bank accounts of all the creditors through cash.

5. Return of Income has been filed by these persons, however, it is seen that they have no or a very meager amount shown salary and Income from other sources.

4. During the course of appeal proceedings, the following notices/letters for hearing were issued to the appellant, but till date the appellant has neither filed any response nor filed any submissions in support of grounds of appeal. The details of the notices issued are as under: S. No. Date of Notice Compliance Remarks Sent Date

1. 14.01.2021 18.01.2021 No response from the appellant

2. 04.11.2022 Issued Enablement of Communication Window. No response from the appellant 3. 09.06.2023 26.06.2023 No response from the appellant

4. 15.07.2023 31.07.2023 No response from the appellant

4.1 As can be seen from the above table the appellant was given ample opportunities by way of notices issued as narrated above. However, the appellant/AR has refrained from attending the appellate proceedings and has not furnished any submission.

4.2 There is a well known dictum of law "VIGILANTIBUS, NO DORMENTIBUS, JURA SUBVENIUNT" which means law will help only those who are vigilant Law will not assist those who are careless of his/her right. In order to claim one's right. s/he must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law Law confers rights on persons who are vigilant of their rights.

4.3 Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukojirao Holkar vs. CWT (223 ITR 480) has held as under.

“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.”

4.4 Similarly, Hon’ble Punjab & Haryana High Court in the case of Now Diwan Oil MV CIT (2008) 206 ITR 495) returned the reference unanswered, since the appellant remained absent and there was no assistance from the appellant.

4.5 In the case of CIT vs. B.N. Bhattacharya reported at 118 ITR 461, it was held by the Hon'ble Supreme Court that “………..appeal does not mean merely filing of appeal but effectively pursuing it……..”

4.6 The decision of the Hon'ble High Court of Mumbai in the case of M/s. Chemipol vi's. Union of India, Law Ministry, Aayakar Bhawan, Mumbai and The Commissioner of Central Excise, Mumbal (Central Excise Appeal No.62 of 2009) clearly states, that every court judicial body or authority, which has a duty to decide a matter between two parties, inherently possesses the power to dismiss the case in default.

4.7 For the sake of reference, the relevant extract of the judicial pronouncement rendered by the Hon'ble High Court of Mumbali quoting decision of Hon'ble

Supreme Court in the case of Nandramdas Diwarkadas AIR 1958 MP 260: is reproduced below:

"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 But it is axiomatic that no who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses."

4.8 The principle that every court that is to decide on a matter of dispute, inherently possesses the power to dismiss the case for default, has been upheld by the Hon'ble Supreme Court in case of Dr. P. Nalla Thampy Vs. Shankar (1984 (Supp) SCC 63 and the case of New India Assurance vs. Srinivasan (2000) 3 SCC 242. In the latter case, the Apex Court has held as under:-

"That every court or judicial body or authority, which has a duty to decide a list 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 the 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 complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant."

4.9 The Hon'ble Bombay High Court has also laid down the proposition that where the appellant in spite of notice is persistently absent and the Tribunal on facts of the case is of the view that the appellant is not interested in prosecuting the appeal, it can in exercise its inherent power to dismiss the appeal for non- prosecution.

4.10 The Hon'ble ITAT Delhi (ITR No.2006/Del/2011 did. 19.12.2001) In the case of Whirlpool of India Ltd v. DCIT had dismissed appeal for non-attendance at hearings, inferring that assessee was not interested in prosecuting of appeal. Thereafter in another decision in the case of Chadha Finlease Ltd. V. ACIT (ITA No.3013/Del/2011 date of order 20.12.2011) the Hon'blo ITAT had dismissed the appeal for non-attendance at hearings.

4.11 In a decision in the case of CIT v. Gold Leaf Capital Corporation Ltd. On 02.09.2011 (ITA no.798 of 2009) cane Hon'ble High Court of Delhi had held that a negligent assessee should not be given many opportunities Just because that quantum of amount involved high. Necessary course of action is to draw adverse inference, otherwise, it would amount to give premium to the assessee for his negligence.

5. The facts of the case as noted above are that the appellant has not pursued the appeal despite being granted several opportunities, as elaborated supra. No details, documents or submissions have been provided to come to any conclusion other than those arrived at by big assessing officer in the order. The notices have been duly served upon the assessee via e-mail, regrettably no response whatsoever was forthcoming on the appointed date. Thus, nothing has been placed on record to substantiate as to why the addition made by the AO should not be sustained.

6. In view of the above, the undersigned is left with no option but to decide the case on the basis of material on record. Bare perusal of the facts shows that the appellant has not pursued the appeal despite being granted several opportunities as elaborated supra. The assessee has further jeopardized its case by not responding despite several opportunities that were provided. I am constrained to agree with the approach adopted by the AO In making addition. The AO has passed a reasoned and speaking order considering all the facts and the circumstances of the case and no Interference with the order of the AO Is called for. The grounds of appeal are therefore dismissed.

13. Considering the factum that since the department has not brought any evidence to suggest any malafide intend in the conduct of the assessee regarding non-compliance before the first appellate authority, therefore, the benefit of doubt has always been provided to the assessee tax payer that due to reasons beyond control of the assessee, he was prevented from complying with the hearing notices. At the same time, since the amount of Rs. 49,32,000/-, which was borrowed by the assessee remained unexplained and the genuineness therein is in doubt, therefore, the onus is now on the department to carry out necessary enquiry to find out whether there is any sham transaction entered into by the assessee. In case, it evolves that certain colourable devices has been employed by the assessee, said addition needs to be sustained.

“7. We have considered the submissions of the parties herein and analyzed the facts and circumstances involved in all the captioned appeals. After careful perusal of the documents on record, we find that the assessee had assailed the legal ground as aforestated, however, the fact of the matter is that on perusal of the respective orders of the Ld. CIT(Appeals) for all the years before us, it is also evident from Para 3 that there has been no compliance by the assessee before the said authority and as such, an ex-parte order was passed for the concerned years in appeal. Admittedly, as per record, sufficient opportunities had been provided to the assesse, however, there was no compliance by the assessee. In effect, rights and liabilities of the parties herein are yet to be adjudicated substantially at the level of the first appellate authority. Though in the impugned orders, discussion has been done as per material available on record by the Ld.CIT(Appeals) but they are only Form 35, statement of facts, grounds of appeal and the assessment order. However, due to non-compliance by the assessee, there are no submissions, evidence and documents submitted for adjudication by the assessee before the Ld. CIT(Appeals). That as per Para 3 of the Ld. CIT(Appeals) order, there has been no compliance on the part of the assessee for submitting detailed explanations regarding the grounds of appeal for the years under consideration which clearly shows that the grounds of appeal raised before the first appellate authority has not been substantiated on merits through corroborative evidence /submissions.

8. That in such scenario we are of the considered view that the Income tax Act is within the ambit of welfare legislation which are completely different from that of the penal legislation, therefore, benefit of doubt whenever arises, it has to be interpreted in favour of the assessee tax payer within the parameters of law and facts. There may be circumstances beyond control of the assessee because of which, the assessee may not have been able to represent his case on the given dates of hearing before the Ld. CIT(Appeals). Though it is correct that there was no compliance from the side of the assessee, however, nothing is there on record which suggests any deliberate non-compliance or malafide conduct of the assessee. That further, if one final opportunity is provided to the assessee to represent his case before the first appellate authority, the position of the revenue will also not be jeopardized. Recently, the Hon’ble High Court of Bombay in the 9. case of Vijay Shrinivasrao Kulkarni Vs. Income-tax Appellate Tribunal (2025) 171 taxmann.com 696 (Bom.), dated 04.02.2025 observed that in the case the Assessing Officer had passed an ex-parte order and when the matter went on appeal before the Ld. CIT(Appeals)/NFAC, it had also dismissed the matter ex-parte due to non-compliance by the assessee’s authorized representative, when the matter came up before the ITAT, it had failed to address the infirmity regarding the fact that the assessee was not afforded proper opportunity of being heard and the matter was dismissed ex- parte by the Ld. CIT(Appeals)/NFAC which amounted to violation of principles of natural justice, and instead ITAT decided the case on merits, in such circumstances, the Hon’ble High Court of Bombay held that passing of an order on merits by the ITAT even when the impugned order was passed ex-parte amounts to violation of principles of natural justice and accordingly, the said matter was remanded to ITAT for passing a fresh order in accordance with law after hearing the parties. The legal principle as enshrined in the present judgment is crystal clear that the principles of natural justice i.e. the right to be heard is to be provided and accordingly, the matter had to be substantially adjudicated by the appellate authority. Therefore, if the impugned order of the Ld. CIT(Appeals)/NFAC is an ex-parte order, the only recourse in conformity with the aforesaid judicial pronouncement is to remand the matter back to the file of the Ld. CIT(Appeals)/NFAC for fresh adjudication in terms with the principles of natural justice providing one final opportunity to the assessee.

10. In the aforesaid case, the Hon’ble High Court of Bombay had referred to a judgment of the Hon’ble Supreme Court in the case of Delhi Transport Corporation vs. DTC Mazdoor Union AIR 1999 SC 564, wherein the Supreme Court inter-alia held that Article 14 guarantees a right of hearing to a person who is adversely affected by an administrative order. The principle of audi-alteram partem is a part of Article 14 of the Constitution of India. In light of such decision, the petitioner ought to have been granted an opportunity of being heard which, partakes the characteristic of the fundamental right under Article 14 of the Constitution of India.

11. The Hon’ble High Court of Bombay in the aforesaid case had referred to a decision of the Hon’ble Supreme Court in the case of Commissioner of Income Tax Madras v. Chenniyappa Mudiliar 1969 1 SCC 591, wherein the Supreme Court in interpreting the section 33(4) of the Income Tax Act, 1922 has held that the appellate tribunal was bound to give a proper decision on question of fact as well as law, which can only be done if the appeal is disposed off on merits and not dismissed owing to the absence of the appellant. Reverting to the facts of the present case the grounds of appeal were simply filed before the Ld.CIT(Appeals) they were not substantiated or corroborated through submissions and filing of documentary evidences since the assessee had not complied before the Ld.CIT(Appeals) on the dates of hearing. Therefore, as per framework of the Act there must be adjudication on merits by the first appellate authority and one final opportunity be provided to the assessee to represent his matter on merits in the interest of natural justice.

12. There may even be a situation where the Ld. Counsel for the assessee may assail a legal ground before the Tribunal following the decision of the Hon’ble Supreme Court in the case of National Thermal Power Company Ltd. Ltd. Vs. CIT (1998) 229 ITR 383 (SC) with a contention that irrespective of the order of the Ld. CIT(Appeals) being ex-parte, the Tribunal may decide the legal issue that has been raised by the Ld. Counsel. In our view, the decision of the Hon’ble Supreme Court in the case of National Thermal Power Company Ltd. Ltd. Vs. CIT (supra) provides that any legal issue which goes to the root of the matter and is established through legal principles, the assessee can take up and raise such legal issue at any appellate forum irrespective of whether the assessee had raised such legal issue at the sub-ordinate level or not, however, it always depends on facts and circumstances of each case whether the Tribunal would decide the legal ground or in a case where the question is of natural justice and ex- parte order by the Ld. CIT(Appeals) the Tribunal would remand it back to Ld.CIT(Appeals) providing final opportunity to a bonafide assessee. The Tribunal as the highest fact finding authority must be certain enough that the impugned order before it has been passed on merits and is a speaking order where the assessee has also complied during the process of litigation. In case, where the order of the Ld. CIT(Appeals) itself is ex-parte and some legal ground is raised and if the Tribunal decides such legal ground where in fact principles of natural justice is left unanswered due to the fact that the impugned order before the Tribunal is ex-parte and there was no compliance by the assessee in such scenario the Tribunal would also be usurping the power of the Ld. CIT(Appeals) which is also a statutory authority as per the Act. This is due to the reason that as per framework of the Act, Ld.CIT(Appeals) is the first appellate authority where an appeal by assessee it would be substantially decided through a speaking order by the Ld.CIT(Appeals). When this part is over and either party is aggrieved second appeal lies before the ITAT. Now if for every ex-parte order passed by the Ld. CIT(Appeals), of course due to non-compliance by the assessee, if the Tribunal adjudicates a legal ground, for instance validity of assessment or reassessment order and answers it in favour of the assessee then it would create an easy route for assessee getting redressal from Tribunal even without bothering to comply with hearing notices before the Ld. CIT(Appeals). This would dismantle the structure of the Act which is definitely not the intention of the legislature. Here in this situation, where the benefit of doubt is given to the assessee since he had not complied with the hearing notices before the Ld. CIT(Appeals) which resulted in passing of an ex-parte order by the Ld. CIT(Appeals), in such scenario, as per the scheme of the Act and following the principles of natural justice, the only course of action is to remand the matter back to the file of the Ld. CIT(Appeals) for adjudication on merits providing one final opportunity to the assessee.

Order pronounced in open court on 10th day of July, 2025.