INDO LAHRI BIO POWER LTD, RAIPUR,RAIPUR vs. ITO, WARD-1(1), RAIPUR, RAIPUR

4. The appellant reserves the right to add, amend or alter any grounds of appeal at any time of hearing.”

2. Shri Bikram Jain, Ld. Authorized Representative (for short 'AR') for assessee company at the threshold submitted that the present appeal involves a delay of 346 days. Elaborating on the reason leading to the delay of 346 days involved in filing of the present appeal, the Ld. AR has drawn my attention to the "affidavit", dated 10.12.2024 filed by the assessee company. The Ld. AR stated that though the assessee company had specifically stated in Form No. 35 that all notices/communications be sent in a mode otherwise through email but, till date, no physical/hard copy of the impugned order of the CIT(A) had been received by the assessee company. The Ld. AR to fortify his contention has taken me through Form No.35, which revealed that the assessee company had opted for receiving all notices /communications otherwise than through email.

“5. Observations, Findings and Decisions 5.1. The order of the Ld. AO passed u/s.143(3) dated 31.12.2019 as well as the grounds of appeal and statement of facts filed by the appellant has been carefully considered. In essence, all the substantial grounds taken by the appellant relate to the action of the Ld. AO regarding addition of Rs.29,40,000/- on account of unexplained cash credit u/s. 68 of the I.T. Act, 1961. 5.2 During the course of appellate proceedings, the appellant assessee was given several opportunities vide notice of hearing/letter dated 05.02.2021, 04.11.2022, 11.09.2023 and 19.09.2023 to represent the case by uploading written submission along with supporting document(s) if any. In the letter to show cause dated 24.08.2023, an explanation was -sought mentioning as to why appeal of the appellant should not be dismissed due to repeated non-compliances. However, the appellant did not avail the opportunities to counter the findings of the Ld. AO and hence appellant's reluctancy to comply to the notices leads to the presumption that it has either nothing to explain in this regard or is not interested to continue the appellate proceeding and thus has no objection at present regarding addition made by the Ld. AO in the impugned assessment order. The reason for the addition was specifically mentioned in detail in the assessment order but the appellant failed to upload any evidence or submission in support of the grounds of appeal. 5.3 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 the Estate of Late Tukojirao Holkar vs Commissioner of Wealth Tax (1997) (223 ITA 480 MP) 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) 296 ITR 495 (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 C1T 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 (1TA 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. 5.4 In this regard, the decision of the Hon'ble High Court of Mumbai in the case of M/S Chemipol vs 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 or Authority, which has a duty to decide a case between two parties, inherently possesses the power to dismiss the case in default. 5.5 On merits also, the appellant has no case. The main ground taken by the appellant relates to addition of Rs.29,40,000/- on account of unexplained cash credit u/s 68 of the I.T. Act, 1961. It is seen from the assessment order that the appellant had deposited cash amounting to Rs.29,40,000/- in the bank account during demonetization period. It was revealed that there was no cash deposits made during the prior period of demonetization period except an amount of Rs.30,000/- and the assessee has shown an amount of Rs.42.46 lakh under revenue from operation as per audit report. During the course of assessment proceedings, the following queries were raised by the Ld. AO in show cause letter dated 28.12.2019: “The assessee has explained that cash deposit of Rs.29,40,000/- during demonetization is out of sale of husk. However, the reply can’t be accepted on following ground:

1. No purchase & sale bills of husk produced. It simply shows that sale of husk is bogus.

2. The details of persons to whom husk were sold have not been submitted, meaning by that no sales were made.

3. No transportation invoices/biltly have been produced. The mode of transportation was also not given. This meant that no sales were made.

4. No opening & closing stock of husk was shown in the book. Some stock must be there if it is part of regular business.

5. From 03/04/2016 to 30/09/2016 all purchase of husk were shown in credit from sister concern and no payments were made, though the assessee had money in books as all sales were shown to have been received in cash. It is unbelievable that purchases of Rs.29,45,000/ have been made and no payments were to be made for the purchases for 9 months. It shows that no purchases have been made.

6. From 03/04/2016 to 30/09/2016, all purchases were shown in credit and from 01/10/2016 to 20/10/2016, all purchases were shown in cash. This pattern of purchases itself shows that purchases are not genuine.

7. From 03/04/2016 to 30/09/2016, all purchases were shown from sister concern and from 01/10/2016 to 20/10/2016, all purchases were shown from other parties to whom cash were paid. Again this pattern of purchases doesn't seem realistic.

8. There is no reason why assessee purchased from 03/04/2016 to 30/09/2016 from sister concern only and from 01/10/2016 to 20/10/2016, all purchase from outsiders only though it attract 40A(3) of the Act and after 21/10/2016, no purchases and sale were shown. It clearly establishes that all purchases & sales were bogus, only to explain that cash deposits during demonetization, these purchases & sales were manufactured.

9. From 03/04/2016 to 30/09/2016, all purchases were shown in cash, but no deposits were made in bank despite of huge cash balance shown at hand, neither payment were made for the purchases. It proves that sales were bogus and actually no sales have been made.

10. From 21/10/2016 to 26/10/2016, no purchases shown but sales were shown whereas it shows, in past, the daily purchases & daily sales having no closing stocks. It implies that sales were only fabricated.

11. No weigh bridge slips were produced.

12. No toll tax slips were produced.

13. After 26/10/2016, no purchases and sales of husk shown. If this was the actual business of assessee, it should have been continued after demonetization period also, but it could not. This clearly shows that bogus sales & purchased were shown in the books only to explain the deposits in bank during demonetization.

14. In F.Y. 2015-16, total purchases shown of Rs.20, 00,389/- and no credit purchases. Net profit earned shown 100%. In F.Y. 2016-17, profit ratio 5%. This again shows that sales and purchases are only books entry only as per requirement of the assessee to explain its undisclosed income.

15. The assessee has shown purchases & sales of 2017.40 MT husk during April, 2016 to October,2016, if it is assumed that each truck/tractors trolly carries 3 MT of husk, then assessee required 691 trucks or tractors to carry the husk. But the assessee has not produced details of even single truck/tractor through which husks were transported. The assessee has also not produced destination of husk to sales.

16. No corresponding expenses on transportation, loading/unloading expenses, hamali, labour expenses, etc. were shown in the books thereby meaning that these sales & purchases shown in books are bogus.

17. The assessee has following bank a/cs :

1. 1. SBI, A/c No. : 308068981191 But no transactions found at all in F.Y. 2016-17.

2. PNB, A/c No. : 0640021. But no transactions found at all in F.Y. 2016-17.

3. IDBI A/c No. : 60641. ‘

No significant transaction in F.Y. 2016-17 except cash deposit during demonetisation in the month of Nov, 2016. On perusal of these bank accounts of the assessee, it clearly establishes that the assessee has no business at all and therefore sales and purchases shown in the books are manufactured and bogus only. 18. The pattern of cash deposits during demonetization on is as under:

This multiple deposits in old currency notes during demonetization shows that the assessee has no cash in hand as on 08/11/2016, otherwise the assessee could have deposited entire money of Rs.29,40,00/- at one go on 10/11/2016, but not done. .

the last submission has never been produced before the undersigned. All the above facts prove that the business of assessee shown as trading of husk is bogus and no such purchases and sales of husk have taken place. The books have been manufactured to book bogus purchases & bogus sales without any supporting documents and without any corresponding expenses just to explain the unaccounted money deposited during demonetization period. No purchases and sales were verifiable. Therefore, books of assessee is rejected and credit amounts of Rs.29,40,000/- in the books and in the banks are treated as unexplained money liable to be added u/s. 68 of IT Act.” In response to the above show cause letter, the appellant had filed submissions; however, the same was not acceptable to the Ld. AO. The Ld.AO established by graphical presentation in respect of FY 2015-16 and FY 2016-17 as to how accumulation of cash were made so as to accommodate the cash deposit in the guise of cash sales. During assessment proceedings, the assessee appellant claimed that the source of cash deposit was from cash sales, however, failed to furnish concrete documentary evidence e.g. various bills and other surrounding evidences. The appellant failed to submit satisfactory explanation regarding huge amount of cash deposits in Old notes (SBN) during the” demonetization period in spite of several opportunities provided by the Ld. AO and accordingly, the entire amount of cash deposits were treated as unexplained cash credit u/s 68 of the I.T. Act, 1961 and added back to the total income of the appellant. During the course of appellate proceeding, the appellant failed to explain the grounds taken against the issues. The reason for addition was clearly mentioned in the assessment order. It is noted from the impugned order that the appellant had three bank accounts maintained with SBI, PNB and IDBI Bank. However, there were no transactions found during FY 2016-17 in the bank account of SBI and PNB. No significant transaction was noticed by the Ld. AO except the cash deposit during demonetization period in the bank account of IDBI Bank which made the AO sceptical about the existence of the business itself. The appellant made no effort to counter the findings of the Ld. AO either by uploading relevant document(s) or explaining the matter in detail and chose to remain silent about the issue in spite of several opportunities were provided to it by issuing notice/letters dated 05.02.2021, 04.11.2022, 11.09.2023 and 19.09.2023.

5.6 In view of this, I find no reason to interfere into the order of the Ld. AO and the same is upheld accordingly. Therefore, all the substantial grounds taken by the appellant are dismissed. 6. In the final result, order of the Ld. AO is upheld leading to simultaneous dismissal of the grounds of appeal taken by the appellant for statistical purpose only.”

Carrying his contention further, the Ld. AR submitted that as the assessee company had remained divested of an opportunity to put up its case before the first appellate authority, therefore, the matter in all fairness requires to be restored to his file with a direction to re-adjudicate the same after affording a reasonable opportunity of being heard to the assessee company.

I find substance in the Ld. AR’s contention that except for, the notice/letter dated 04.11.2022 (supra) neither of the remaining notices intimating fixation of the appeal was ever dropped in the email account provided by the assessee in “Form 35” i.e. indo-lahari1994@rediffmail.com. Although the Ld. DR states that the notices intimating the fixation of the hearing of the appeal would have been dropped in the email id i.e. nutanispat2002@gmail.com for the reason that the assessee company had not responded to the initial notices but the said fact is not discernible from the record. As there is nothing available on record which would reveal that on any occasion any notice intimating the fixation of the hearing of the appeal was dropped in the email id provided by the assessee in “Form 35” i.e. indo-lahari1994@rediffmail.com, therefore, I am unable to comprehend as to how the assessee could be held to have been validly put to notice about the fixation of the hearing of the appeal on different dates.