ANIL KUMAR TANWAR,BHIWADI vs. ITO BHIWADI, BHIWADI

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 36/JP/2024 fu/kZkj.k o"kZ@Assessment Years : 2009-10 cuke Anil Kumar Tanwar ITO, Vs. Shop No. 27, Sector 8, Bhiwadi Bhiwadi, Bhiwadi UIT Colony, Alwar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADTPT 4403 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. P C Parwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 12/02/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 14/02/2024 vkns'k@ ORDER

PER: RATHOD KAMLESH JAYANTBHAI, AM

This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 20/11/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2009-10 which in turn arise from the order dated 22.02.2016 passed under section 144 r.w.s 147 of the Income Tax Act, by ITO, Ward- Bhiwadi, Alwar.

2 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO “1. Under the facts and circumstances of the case the assessee has submitted the document before NFAC/ Commissioner of Income Tax (Appeals), but the NFAC has failed to consider it and passed the order on dated 20.11.2023 and dismiss the appeal which deserved to be accepted.

course of assessment proceedings in the case of Shri Pratap Singh

Tanwar, PAN: ADAPT0047M for the A.Y. 2009-10, it was observed that the

assessee, Sh. Anil Kumar Tanwar had advanced an unsecured loan of Rs.

33,48,500/- to Shri Pratap Singh Tanwar for which an addition of an equal

amount was made by the AO in the hands of Shri Pratap Singh Tanwar by

treating the same as unexplained cash credit. Shri Pratap Singh Tanwar

preferred an appeal which was admitted and addition of Rs. 33,48,500/-

was deleted with an observation that the AO may, if he so desires, pass the

3 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO information to the AO with whom the cash creditor i.e. Shri Anil Kumar

Tanwar, is assessed to tax.

3.1 Shri Pratap Singh Tanwar had submitted a reply received from Shri

Anil Kumar Tanwar in response to a letter issued from the ld. AO during the

period his case was remanded back to the AO from the CIT(A). He also

filed bank-statements, copy of ITR for A.Y. 2010-11 which was irrelevant to

the year under consideration and copies of DDs. In the absence of the

assessee, source of loan for Rs. 33, 48, 500 /- by means of two DDs of Rs.

16,74,000/- each and one DD of Rs. 500/- could not be proved. Cash

deposits of Rs. 40,000/- on 10.09.2008 and Rs.9,00,000/- on 23.01.2009 in

his bank account at ICICI Bank could also be not explained. In view of the

above, notice u/s 148 was issued to the assessee on 24.07.2014. No return

was filed by the assessee in response to notice u/s 148. Notice u/s 142(1)

was issued on 30.10.2015. No compliance was made to the notice also and

there was no information about the willingness of the assessee to explain

the sources of cash deposits. In view of the facts and circumstances and in

the absence of any proof/explanation for such cash deposits/loans

advanced, therefore an addition of Rs. 42,88,500/- made (Rs. 33,48,500 +

Rs. 9,40,000/-) to the income of the assessee.

4 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO 4. Aggrieved from the order of the assessment, assessee preferred an

appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant

finding of the ld. CIT(A) is reiterated here in below:

“5. Observations, Findings and Decisions

5.1. The order of the Ld. AO passed u/s 144 r.w.s. 147 dated 22.02.2016 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. 33,48,500/- on account of unsecured loan advanced to Shri Pratap Singh Tanwar and addition made due to unexplained DD of Rs.500/- and cash deposits of Rs.9,40,000/-.

5.2 During the course of appellate proceedings, the appellant assessee was given several opportunities vide notice of hearing/letter dated 10.02.2021, 07.11.2022, 15.09.2023, 27.09.2023 and 16.10.2023 to represent the case by uploading written submission along with supporting document(s) if any. In the letter to show cause dated 27.09.2023, 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 he 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

5 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO 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) 296ITR495 (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 ITA No.798 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. 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. 33,48,500/- on account of unsecured loan advanced to Shri Pratap Singh Tanwar and addition on account of DD of Rs.500/- and unexplained cash deposits amounting to Rs.9,40,500/-. It is seen from the assessment order that the assessee appellant had advanced an unsecured loan amounting to Rs.33,48,500/- to Shri Pratap Singh Tanwar and an addition of Rs.33,48,500/- was made by the AO in the case of Shri Pratap Singh Tanwar on account of unexplained cash credit. Shri Tanwar preferred an appeal before the CIT(A) against the addition and the CIT(A) deleted the addition observing that the AO might pass the information to the AO of the present case. In the view of the same, the case of the appellant was reopened by issuing notice u/s 148 of the I.T. Act. 1961. It is also noted from the impugned order that assessment was completed u/s 144 of the I.T. Act, 1961 and hence during the course of assessment proceedings source of loan amounting to Rs.33,48,500/- and one Demand Draft for an amount of Rs.500/- and cash deposits of Rs.40,000/- and

6 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO Rs.9,00,000/- in the bank account of the appellant maintained with ICICI Bank remained unexplained. Therefore, the Ld. AO added the entire amount of loan, unexplained DD and cash deposits totaling to Rs.42,88,500/- 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. However, 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. The appellant did not comply to the departmental notices both during assessment proceedings as well as during appellate proceedings.

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.”

CIT(A), the assessee has preferred the present appeal before this Tribunal

on the ground as reproduced hereinabove. To support the various grounds

so raised by the ld. AR of the assessee, has filed the written submissions

and the same is reproduced herein below.

“1. It is submitted that along with the assessment order AO initiated penalty proceedings u/s 271(1)(c), 271B and 271F against which penalties were imposed and assessee filed appeal against these penalty orders. Thus four appeals were pending before NFAC, one against quantum and three against the penalty orders. The details of these appeals are as under:- Quantum appeal Appeal No. 11436 Penalty appeal u/s 271(1)(c) Appeal No. 11437 Penalty appeal u/s 271F Appeal No. 11438 Penalty appeal u/s 271B Appeal No. 11439

7 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO 2. It is submitted that NFAC issued notice dt. 27.09.2023 (PB 3 & 15) both in quantum appeal and in penalty appeal u/s 271(1)(c). The assessee sought adjournment in both the appeals and accordingly fresh notice dt. 16.10.2023 (PB 16) was issued in quantum appeal and notice dt. 17.10.2023 (PB 4) was issued in penalty appeal. The assessee in response to the quantum appeal filed detailed submission on 30.10.2023 (PB 7-14) but by mistake the submission along with annexures was uploaded in the penalty appeal u/s 271(1)(c) (PB 5-6). When this mistake was noticed by the assessee, he again uploaded the submission along with annexures on 20.11.2023 in quantum appeal (PB 17-18) which were filed in the penalty appeal. However, the Ld. NFAC without considering the submission and the details passed the order on 20.11.2023 by stating that assessee failed to explain the grounds taken against the issue. In view of above facts, it is humbly prayed that the matter be set aside to the AO in the interest of imparting substantial justice to the assessee.”

and more particularly advanced the similar contentions as stated in the

order of the ld. CIT(A).

on record. The bench noted that the assessment order AO initiated penalty

proceedings u/s 271(1)(c), 271B and 271F against which penalties were

imposed and assessee filed appeal against these penalty orders and also in

the quantum. All these appeals were numbered sequentially thus four

appeals were pending before ld. CIT(A), one against quantum and three

against the penalty orders.

8 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO 7.1 Considering conspectus of the case and since there is a force in

arguments of the ld. DR as to why and how the non compliance though not

but appeared on record we deemed it in the interest of the justice be

considered as reasonable reason for non compliance before the ld. CIT(A).

As the order of the ld. AO in this case is also not on merits without

considering the arguments of the assessee we deem it fit in the interest of

the justice to remand back the matter before the ld. AO to decide afresh on

merit. Therefore, considering that contentions and ongoing through the

orders of the lower authorities we are of the considered view that the

assessing officer should hear the assessee’s submission on merits after

affording proper opportunity of being heard and pass speaking order in the

matter in accordance with the law. At the same time assessee is directed to

represent and present all the facts before the assessing officer and should

not ask for the adjournment on frivols grounds. At this stage we remand

back the issues raised without commenting upon the merits of the case and

the ld. AO is directed to complete the assessment as per law.

In the result, the appeal of the assessee is allowed for statistical

purposes.

9 ITA No. 36/JP/2024 Anil Kumar Tanwar vs. ITO Order pronounced in the open court on 14/02/2024. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judcial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 14/02/2024 *Ganesh Kumar, PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Anil Kumar Tanwar, Bhiwadi 2. izR;FkhZ@ The Respondent- ITO, Ward- Bhiwadi, Alwar 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 36/JP/2024) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत