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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & DR MITHA LAL MEENA, AM
ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 26-10-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2017-18 wherein the assessee has raised the following ground of appeal.
1. That on the facts and circumstances of the case the Id. CIT(A) grossly erred in passing the ex parte order and confirming the addition made by the ld. Assessing officer.
2 BADRI NARAYAN MADHOLAL VS ITO, WARD 1(4), JAIPUR 2. That in law and on the facts and in the circumstances of the case ld. CIT(A) authorities grossly erred in confirming the disallowance of Rs 92,637/-out of car expenses, shop expenses, wages and telephone expenses. 3. That on the facts and in the circumstances of the case and in law ld. CIT(A) authorities grossly erred in confirming the addition of Rs.3,953/- on account of non-deduction TDS on interest of Rs 13,177/.
That on the facts and in the circumstances of the case and in law, ld. CIT(A) authorities grossly erred in confirming the addition of Rs.9,89,853/- under section 68 on account of unexplained cash deposited in bank accounts during demonetization period without considering the facts which is bad in law and illegal.
5. That on the facts and in the circumstances of the case and in law, ld. CIT(A) authorities grossly erred in confirming the addition of Rs.1,60,638/- under section 43B of the Act on account of non payment of TDS up to the due date of filing of return.
That on the facts and in the circumstances of the case and in law, ld. CIT(A) authorities grossly erred in confirming the addition of Rs. 10,00,000/- under section 68 on account of unexplained cash creditors.
That on the facts and in the circumstances of the case and in law, ld. Assessing officer grossly erred in making the additions without giving any show cause notice.
2.1 Apropos Ground No. 1 to 7 of the assessee, it is noted that the ld.CIT(A) has dismissed the appeal of the assessee holding that in the instant case, the additions 3 BADRI NARAYAN MADHOLAL VS ITO, WARD 1(4), JAIPUR had been made towards disallowances of expenses and unexplained credit u/s 68 of the Act. The AO has given many opportunities to the assessee to submit details and response to specific issues. The additions made are duly reasoned and discussed in the assessment order passed. The relevant proceedings and findings of the ld.CIT(A) at para 4 to 7.00 are mentioned as under:- ‘’4. PROCEEDINGS: 4.1 The assessee is on appeal before this office against the order passed u/s 143(3) of the Income Tax Act, dated 30th December, 2019. 4.2 The assessee was provided multiple opportunities by this office to submit documents and make submissions in response to the appeal filed. However, the assessee has not exercised this option despite multiple reminders.
Please find your non-compliance to the notices as mentioned below: Date of Notice Compliance Date Remarks 15-01-2021 22-01-2021 No details furnished nor any petition for adjournment was received 05-07-2023 11-07-2023 No details furnished only petition for adjournment was received 14-07-2023 28-07-2023 No details furnished nor any petition for adjournment was received 13-09-2023 20-09-2023 No details furnished nor any petition for adjournment was received 11-10-2023 18-10-2023 No details furnished nor any petition for adjournment was received With response to last hearing notice dated 11th October, 2023 you were given final opportunity of being heard, you have once 4 BADRI NARAYAN MADHOLAL VS ITO, WARD 1(4), JAIPUR again not replied not reasoned for non- compliance. This clearly shows that you have been procrastinating the appellate proceedings and have been non-co-operative. In the light of the above the case is been decided on the merits based on the documents and information available on records.
FINDINGS & DECISION 5.1. The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in the well-known Latin dictum, "VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT. The conduct of the Appellant, as inferred from the aforesaid table, evidences that the Appellant fails on this principle of equity. 5.2. From the above, it is also clear that in spite of reposting the hearing on various dates, there has not been any effective representation by the assessee. This is a clear case of callous and indifferent attitude of the appellant towards appellate proceedings. Hence, it is obvious that the appellant is not interested in pursuing the present appeal. In such a situation, the appeal is liable to be dismissed in terms of verdicts of the Hon'ble Apex Court and various other Courts. The Hon'ble Apex Court, in the case of CIT V. B. N. Bhattacharjee and another (118 ITR 461) held that an appeal means an effective appeal. It held that purposefully interpreted, preferring an appeal means more than formally filing it but effectively pursuing it. If a party retreats before the contest begins, it is as good as not having entered the fray. The Hon'ble MP High Court in Estate of Late Tukojirao Holkar V. CIT, 223 ITR 480(MP) has held that if a party, at whose instance the reference is made, fails to appear at the hearing, or fails in taking steps for preparation of paper books so as to enable hearing of the reference, the court is not bound to answer the reference.
5 BADRI NARAYAN MADHOLAL VS ITO, WARD 1(4), JAIPUR The Hon'ble Punjab & Haryana High Court in the case of New Diwan Oil Mills vs. CIT [(2008) 296 ITR 495] returned the reference unanswered since the assessee remained absent and there was no assistance from the assessee. Similar view has also been taken by the Hon'ble ITAT in the case of CIT V. Multiplan (India) Pvt. Ltd, 38 ITD 320 Del). Under similar circumstances, following the ratio of Multiplan (India) Ltd (supra), the jurisdictional Chennai Tribunal has also dismissed appeal for non-prosecution in the case of M/s. Helios and Matheson Information Technology Ltd Vs. ITO in ITA No. 134/Mds/2011 dated 5th July, 2011 for A.Y.2006-07. 5.3 There is no reason why the ratio of the above decisions will not be applicable to the appellant. In view of the above, the grounds of appeals are held as dismissed. 6.0. The case is also examined on merits. In the instant case, the additions have been made towards disallowance of expenses and unexplained credits u/s 68 of the Act. The Assessing Officer has given many opportunities to the assessee to submit details and responses to specific issues. The additions made are duly reasoned and discussed in the assessment order passed. No additional evidences have been furnished by the appellant which could have been considered in the appeal proceedings. In view of the above, no interference is called for on the additions made by the A.O. Accordingly, the additions/disallowances as challenged in the Grounds of Appeal and in the Appeal Memo are hereby confirmed. 7.0. Accordingly, the appeal of the Appellant for the AY 2017- 18 is dismissed.
2.2 During the course of hearing, the ld. AR of the assessee prayed that the assessee was not provided adequate opportunity of hearing by the authorities below 6 BADRI NARAYAN MADHOLAL VS ITO, WARD 1(4), JAIPUR and also prayed that one more chance may be provided to contest the case before the ld. CIT(A) in order to settle the issue in question. 2.3 On the other hand, the ld. DR has objected to the prayer of the ld CIT(A) and also relied upon the order of the ld. CIT(A) 2.4 We have heard both the parties and perused the materials available on record. The Bench noticed that the ld. CIT(A) had provided various opportunities to the assessee to advance his submission with a view to settling the dispute in question (supra) but the assessee was really lethargic and unserious in pursuing his case in spite of providing various opportunities by the ld. CIT(A). It is undisputed fact that the assessee was granted several opportunities by the ld. CIT(A) to argue the case but the assessee remained non-cooperative and negligent in pursuing his case on the dates of hearing of the appeal for which the Bench awards cost of Rs.2,000/- and the same may be deposited in the Prime Minister Relief Fund and copy of the same shall be submitted to the ld. CIT (A) for proof and thus the appeal of the assessee is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 3.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any 7 ITA NO. 790/JP/2023 BADRI NARAYAN MADHOLAL VS ITO, WARD 1(4), JAIPUR reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law. 3.0 In the result, the appeal of the assesee is allowed for statistical purposes. Order pronounced in the open court on 31/01/2024.