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Income Tax Appellate Tribunal, MUMBAI BENCH “F”, MUMBAI
Before: Shri Mahavir Singh & Shri G Manjunatha
O R D E R Per G Manjunatha, AM : This appeal filed by the assessee is directed against the order of CIT(A)-25, Mumbai dated 11-11-2016 and it pertains to AY 2010-11.
The assessee has raised the following grounds of appeal:-
“1. CIT [A] has erred in passing exparte order. Appellant was prevented by sufficient cause for non attending on the appointed date.
2. CIT [A] has erred in confirming the order which is passed by violating the principle of natural justice. In exparte assessment there may be some guess work but not wild one which AO has done.
CIT [A] has erred in confirming addition made by AO to the total income total of credit side of bank pass book. Where AO has ignored cheque return entries also on credit side of pass book when the copy of pass book collected by AO from bank of Baroda.
4. CIT[A] has erred in confirming income which is twice added to the income of assessee. addition of purchase & sale of shares opening balance of shares on 2 ITA 920/Mum/2017 presumption whereas in fact bank pass book is having all entry .it amount to double addition once total credit has been added again sale of share has been added which are already included in the credit side of pass book.
CIT [A] has not adjudicated legal issue such as notice u/s 143[2] no show cause notice has been issued hence order of CIT[A] is bad in law.
Credit in pass book cannot be income under section 68, no credit in the books of account and bank pass book is not books of account maintained by assessee.
CIT[A] has erred in confirming order of AO which is passed without issuing show cause notice.
Appellant is having all information in his possession one more opportunity may be given to get justice.
9. Appellant is nothing gaining by not producing documents before AO. Due to unavoidable circumstances it was not produce.”
The brief facts of the case are that the assessee had filed his return of income for AY 2010-11 on 14-06-2010 declaring total income at Rs.1,62,194. The case has been selected or scrutiny and notices u/s 143(2) and 142(1) of the Act, were issued. But, none appeared for the assessee on the date of hearing. Thereafter, the case has been posted on various dates as mentioned by the AO in his order, but the assessee neither appeared nor furnished any details. Since, assessee did not furnish any information, the AO called upon the details from the Manager of Bank of Baroda to furnish bank statement of accounts maintained by the assessee. Similarly, the AO also sought certain information from BSE & NSE about purchase and sale of shares. The AO, on the basis of information received from Bank of Baroda found that the total credits found in the bank account for the year stood at Rs.2,09,05,291. As the assessee has not complied with any of the notices to explain the credits found in bank account, the AO has treated total credits found in the bank
3 ITA 920/Mum/2017 as unexplained credits and added to the total income. Similarly, the AO made addition towards unexplained investments in purchase and sale of shares of GEODESIC and Petronet for an amount of Rs.44,15,775.
3. Aggrieved by the assessment order, assessee preferred appeal before the CIT(A). Before the CIT(A), assessee neither appeared nor furnished any details which is evident from the fact that the Ld.CIT(A) has afforded number of opportunities to the assessee on various dates as mentioned at para 8 of his order. Although, the assessee sought adjournment by filing letter on the date fixed for hearing, but on the next date of hearing, the assessee neither appeared nor furnished any details. Therefore, the Ld. CIT(A) left with no option but to proceed to dispose of the appeal on the basis of findings of AO and accordingly confirmed addition made by the AO towards unexplained credits found in bank account and unexplained investment in purchase of shares. The relevant portion of the order of the Ld.CIT(A) is extracted below:-
“8. After filing of the present appeal, the case was fixed for hearing vide notice dated 20/03/2014 asking the appellant to appear on 28/04/2014.The notice was duly served on the appellant. The appellant filed a letter dtd 28/04/2014 asked for adjournment But none attended on the appointed date nor was any application for adjournment filed The case was again fixed for hearing vide notice dated 26/08/2014 asking the appellant to appear on 09/09/2014. On the date of.hearing the appellant filed letter dtd. 09/09/2014 seeking adjournment. The case was fixed for hearing vide notice dtd. 10/12/2014 asking the appellant to appear on 19/12/2014 but again no one attended. On the date of hearing the appellant filed letter dtd. 19/12/2014 seeking adjournment. Another notice dtd 24/02/2015 was served asking the appellant to appear on 04/03/2015 and again on the appointed date no one attended nor any application was filed. The case was 3ga:n fixed for hearing vide notices dtd. 16/07/2015 and 04/08/2015, asking the appellant to appear on 29/07/2.015 and 29/08/2015 respectively, but again no one attended. On the date of hearing the appellant filed letter dtd. 19/08/2015 seeking adjournment. Thereafter, notices u/s 250 were issued on 13/10/2015, 30/03/201G, 22/06/2016, 31/08/2016, and 4 ITA 920/Mum/2017 16/09/2016, 07/10/2016 at the appellant's address and again on the appointed dates no one attended nor any application was filed. A final opportunity was granted and the case was fixed for hearing vide notice dated 07/10/2016 asking the appellant to appear on 10/11/2016. Even in the case of last opportunity, no body attended. Thus it is clear that the appellant has repeated the same conduct of non-compliance on the appointed dates. Till date, neither the appellant nor his Authorized representatives has ever attended the appellate proceedings or filed any details.
From the above sequence of the non-compliances and the non-seriousness of the appellant in the matter of present appeal and with such irresponsible conduct of the appellant, it is clear that that the appellant is not interested in prosecuting the appeal. Therefore, this appeal is being decided on merits as per the material available on record.
Ground No. 1 to 5 and 10. The grounds of appeal
No. 1 to 5 and 10 are against the action of the AO in passing an ex parte assessment without giving the appellant an opportunity to present his case. I find that trie AO has given more than enough opportunities to the appellant to appear before him and present his case. For reasons best known to the appellant, these opportunities have not been availed. I therefore find no force in the argument of the appellant tnat the AO passed an ex parte assessment. I therefore dismiss these grounds of appeal.
11. Ground; No. 6 to 9 and 11: The grounds of appeal No. 5 to 9 and 11 are against the action of the Assessing Officer in the addition of undisclosed income related to bank deposit in BOB and pertaining to share transaction
12. From the facts of the case, it is observed that there was unaccounted and undisclosed income which could not be explained by the appellant before the AO during the assessment proceedings. In spite of repeated request by the AO nothing was produced for verification. During appellate proceedings, the appellant neither attain nor demonstrate as to how the action of the AO was wrong, as no reply was submitted. Looking to the totality of the facts and circumstances of the case, I have no option but to confirm the action of the AO in bringing undisclosed income amounting to Rs. 2,54,27,901/- to tax. Hence, these grounds of appeal are ^v dismissed.
13. Ground No. 12 : This ground is against the initiation of penalty proceedings under section 271(1)(c) of the Act. It is observed that the AO has just initiated the penalty proceedings and not imposed it. Hence, it ground is premature. Accordingly, the ground of appeal no. 5 is dismissed.
14. Ground No. 13: This ground of appeal relates to charging of interest u/s 234B and 234C of the IT. Act, 1961. In this regard, I find that charging of interest is consequential and mandatory in nature. Therefore, there is no merit in the claim of the appellant. Hence, the ground no. 4 is dismissed.
15. Before concluding, it is brought on record that their Lordships of Hon'ble Supreme Court in the case of CIT vs. B.N. Bhattacharjee and Another 118 ITR 461 at page 477-78 has held that the appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same.”
4. We have heard the Ld.DR and perused the material available on record in the absence of assessee’s presence. On perusal of the assessment records, it reveals that the assessee is a habitual non
5 ITA 920/Mum/2017 complier to the proceedings before the lower authorities which is evident from the fact that the AO has given ample opportunities to the assesee to comply with notices but the assessee neither appeared nor filed any details. During appellate proceedings, the Ld.CIT(A), has given number of opportunities, but assessee failed to make use of the opportunities given by the Ld.CIT(A) to explain his case. The non attendance / non co-operation is also seen before the Tribunal, as when the case was posted for hearing on 24-05-2018, the assessee neither appeared nor sought any adjournment. The case has been again posted for hearing on 20-06-2018. On this date also, the assessee, neither appeared, nor filed any details. Therefore, we are of the considered view that the assessee is not interested to explain addition made by the AO towards unexplained cash credits and investment in shares. The Ld.AO has made additions on the basis of bank statement and BSE information.
The assessee did not turn up to explain credits in bank account and purchase of shares. In the absence of any explanation from assessee, we are helpless to give any benefit to the assessee. Therefore, we are of the considered view that the Ld.CIT(A) was right in confirming addition made by the AO. We do not find any error or infirmity in the order of the Ld.CIT(A). Hence, we are inclined to uphold the findings of Ld.CIT(A) and dismiss the appeal filed by the assessee.
6 ITA 920/Mum/2017
In the result, appeal filed by the assessee is dismissed.
Order pronounced in the open court on 29th June, 2018. 3.