MITESH K. SHAH,MUMBAI vs. ITO 25(2)(2), MUMBAI

In ground no.1, assessee has challenged addition of ` 2,39,32,870.

Brief facts are, the assessee an individual filed his return of income on 22nd September 2006, declaring total income of ` 1,39,820.

The learned Commissioner (Appeals), after considering the submissions of the assessee, in the context of facts and material on record, found that, though, the assessee accepted that the bank accounts belong to him, however, his claim that cash deposits made in the bank account were given to him by his clients to whom he issued cheque / pay orders were not backed by corroborative evidence. She observed, even after repeated query made by her to disclose the name, address and confirmation from the persons from whom assessee claimed to have received the cash deposits, the assessee did not furnish any information on some plea or the other. The learned Commissioner (Appeals), therefore, finding that the assessee has not explained the source of cash deposits through any cogent evidence confirmed the addition made by the Assessing Officer, though, not under section 68 but under sections 69, 69A and 69B of the Act.

When the appeal was called for hearing, no one appeared for the assessee. On a perusal of the order sheet entries, it is noted that, though, the hearing of appeal is going on since January 2011, the assessee is repeatedly seeking adjournment on some plea or other. It is also pertinent to mention, this appeal of the assessee was earlier decided ex–parte on the failure of the assessee to appear on the date of hearing, However, subsequently, on the request of the assessee, the order disposing of the assessee’s appeal was recalled. Still, as is 4 Shri Mitesh K. Shah evident, there is no change in the attitude of the assessee in pursuing his appeal diligently. Thus, it is clear that the assessee is not interested in pursuing his appeal. As it is an old appeal of the year 2009, we proceed to dispose off the appeal ex–parte, qua the assessee, after hearing the learned Departmental Representative.

We have heard the learned Departmental Representative and perused the material on record. As could be seen from the assessment order, the Assessing Officer on the basis of information available on record, has found certain cash deposits in bank accounts held by the assessee. As the assessee did not appear to explain the source of cash deposits before the Assessing Officer, he treated cash deposit as income of the assessee. Before the learned Commissioner (Appeals), as it appears from the appeal order, though, the assessee accepted the fact that the bank accounts where cash deposits were made belong to him, however, he could not properly explain the source of cash deposit. Therefore, learned Commissioner (Appeals) confirmed the addition. Before us also, the assessee has neither appeared nor produced any material to explain the source of cash deposits in the concerned bank accounts. Therefore, in the absence of any evidence produced by the assessee, the cash deposits made in the bank account have to be held as assessee’s income, therefore, we do not find any 5 Shri Mitesh K. Shah infirmity in the order of the learned Commissioner (Appeals) in confirming the addition. Ground no.1, is dismissed.

In grounds no.2 and 3, assessee has challenged the validity of the assessment order passed under section 144 without fulfilling the condition of the said provisions as well as the principle of natural justice. As could be seen from the grounds raised, the assessee’s grievance is the learned Commissioner (Appeals) while deciding the appeal has not adjudicated these issues raised by the assessee. On a perusal of the impugned order of the learned Commissioner (Appeals), it appears to us, though, the assessee had raised grounds on the aforesaid issues, however, at the time of hearing, the merits of the additions were only argued and these issues were not specifically argued by the assessee. The assessee has failed to bring any meterial on record to demonstrate that before the first appellate authority, the ground raised on the validity of assessment order passed under section 144 as well as failure on the part of the Assessing Officer to observe principles of natural justice were specifically argued but not adjudicated. Therefore, in the absence of any specific argument on these issues by the assessee, there was no occasion for the learned Commissioner (Appeals) to adjudicate these issues. Therefore, we do not find any merit in grounds no.2 and 3, hence, dismiss the same.

Ground no.4, is on levy of interest under section 234B, 234C and 234D.

Levy of interest under the aforesaid provisions being mandatory and consequential, we do not find any reason to interfere with the same. Accordingly, this ground is dismissed.

In the result, appeal is dismissed. Order pronounced in the open Court on 30.11.2016