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Income Tax Appellate Tribunal, PUNE BENCH “SMC” PUNE (THROUGH VIRTUAL HEARING
Before: SHRI OM PRAKASH KANT & SHRI SS VISWANETHRA RAVI
This appeal by the assessee is directed against order dated 08.06.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12, raising following grounds:
1. Ex-parte Order Passed by the CIT(A) 1.1 The Learned Commissioner of Income Tax (Appeals) ["the Ld. CIT(A)] has erred in not granting proper, sufficient and adequate opportunity of being heard to the while framing the order u/s 250 of the Act. 1.2 The Ld. CIT(A) passed the order without even considering the adjournment request.
Suryakant Baburao Swami 2 1.3 In the above circumstances ti is humbly prayed to set aside the order passed by the CIT(A). WITHOUT PREJUDICE TO ABOVE 2. ADDITION OF CASH DEPOSIT OF * 28,29,500/- U/S 69 OF THE ACT 2.1 On the facts and circumstances of the case, the Ld. CIT(A) erred ni affirming the action of the Assessing Officer ni making the addition of ‹ 28,29,500/- u/s 69 of the Act. 2.2 The Ld. CIT(A) further erred ni affirming the invocation of section 69 of the Act by the Assessing Officer in the present case. 2.3 In the facts and circumstances of the cases ti is humbly submitted that no addition is warranted ni the present case and therefore deserves ot be deleted.
Despite notifying for the hearing, neither anyone attended on behalf of the assessee nor any adjournment was sought and therefore, the appeal is heard ex-parte qua the assessee after hearing the arguments of the Ld. Departmental Representative (DR).
The Ld. CIT(A) has decided the appeal ex-parte qua the assessee due to non-compliance of the notices by the assessee. The relevant finding of the Ld. CIT(A) is reproduced as under:
7.1 During the course of assessment proceedings, as per the AIR information there was cash deposit of more than Rs. 10 lakhs in the savings bank account of the assesse and also the assesse has not filed the return of income. Accordingly, AO reopened the assessment by issue of notice u/s 148 of the I.T.Act, 1961. Subsequently, the AO has issued notice u/s 142(1) along with questionnaire and ni response to the same the AR of the assesse appeared but not filed any details. The AO issued further notices, but there was no response from the assesse. The Assessing Officer obtained the bank statement of the assesse of S.B.Account with Latur Urban Co-op. Bank Latur Branch, which shows credits by way of cash deposit on various dates to the tune of Rs. 20,72,500/- and also there was interest amount credits to the tune of Rs. 11,251/-. Since there is no explanation from the assesse about the nature and source of the cash deposits in his bank account and also with regard to bank interest, the AO treated same as unexplained investment u/s 69 of het I.T.Act, 1961 and completed the assessment and assessed the total income at Rs. 28,40,750/-. Hence, the assesse is in appeal.
Suryakant Baburao Swami 3 ITA No. 844/PUN/2023
It is relevant to mention here that during the course of appellate proceedings several opportunities of hearing were provided in the interest of natural justice but the appellant failed to produce any explanation or documentary evidences in support of appellant's claim. 7.3 In view of the above, it is clearly evident that the appellant si not interested in prosecuting the appeal. In this regard, ti is pertinent to note that the Hon'ble Apex Court, in the case of CIT .v B.N.Bhattacharjee and another (10 CTR 354) held that na appeal means an effective appeal-- "expression "prefer an appeal" would mean effectively prosecuting an appeal" Purposefully interpreted, preferring an appeal means more than formally filing ti but effectively pursuing it. fI a party retreats before the contest begins, ti is as good as not having entered the fray. 7.4 The Hon'ble Bombay High Court in the case of M/s Chemipol Vs. Union of India in Excise Appeal No. 62 of 2009 dated 17-09-2010 held that in cases where assesse do not want to pursue the appeal, the court/tribunal had inherent power ot dismiss the appeal for want of prosecution. Similar view has also been taken in the case of CIT .v Multiplan (India) Pvt. Ltd., 38 ITD 320 (Del). Following the ratio of Multiplan (India) Ltd (supra), the Chennai Tribunal has also dismissed appeal for non- prosecution ni the case of M/s Helios and Matheson Information Technology Ltd v ITO ni dated 5.7.2011 for A.Y.2006-07. Further, the Hon'ble MP High Court ni Estate of Late Tukojirao Holkar .v CIT, 223 ITR 480(MP) has held that fi 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. 7.5 It is pertinent to add here that the laws assist those who are vigilant and not those who sleep over their rights. This principle is embodied in the well-known maxim "Vigilantibus et non dormientibus jura subveniunt". It means equity comes to the aid of the vigilant and not the slumbering. In al actions, suits and other proceedings at law and ni equity, the diligence and careful plaintiff is favoured to the prejudicial of him who is careless. 7.6 Accordingly, ti si wel settled legal position that merely by filing an appeal, it is not possible to adjudicate the matter by the appellate authorities until and unless the appellant effectively prosecute such appeal. nI the instant case, as clearly explained at Para 4.1 above, the a s s e s s e has failed to prosecute its appeal, as the appellant/AR of the appellant has failed to file any written submissions in support of grounds of appeal. The appellant has shown a callous and non-serious attitude towards the departmental proceedings and it appears obvious that the appellant has nothing substantial to say with regards to his claims. Under these circumstances, I am of the considered opinion that Suryakant Baburao Swami 4 the appeal filed by the assesse is liable for dismissal for non- prosecution and accordingly I proceed to dispose of the appeal on merits also based on the grounds of appeal
, statement of facts as mentioned above and the assessment order. 7.7 During the course of appellate proceedings, the appellant was provided multiple opportunity ni the interest of natural justice but the appellant failed to avail the above opportunities except once, wherein the response to the notice, the appellant has requested to provide copy of assessment order as he has misplaced the same. Accordingly, this office has provided the copy of assessment order and was asked to produce the documentary evidence in support of the addition of Rs. 28,29,500/- made by the AO towards cash deposit and interest income received of Rs. 11,251/-. However, the appellant failed to produce any documentary evidence ni support of his claim even after providing multiple opportunities. Therefore, the addition made by the AO at Rs. 28,29,500/- towards cash deposit and bank interest earned of Rs. 11,251/-, is hereby confirmed on merit also and the grounds of appeal raised by the appellant are dismissed.”
4. We find that the assessee is an agriculturist and claimed to have deposited the sale consideration of the agriculture produce in his saving bank account No. 17 in Latur Urban Co-operative Bank Ltd. In the statement of facts filed before the Ld. CIT(A), it has been claimed by the assessee that he was busy in managing agricultural activity and was engaged in tackling draught during the period, therefore, he could not file evidence in support of claim of source of cash deposits. The assessee failed to respond to the notices issued by the Ld. CIT(A) through e-mails. In our opinion, the assessee being located in rural area and agriculturalist, there is a possibility of not responding notices through e-mail due to lack of digital acquaintance. Since, the Ld. CIT(A) has decided the appeal ex-parte firstly, without adjudicating on the merit and secondly, without taking into consideration submission of the assessee, therefore, we feel it appropriate to set aside the order of the Ld. CIT(A) and restore Suryakant Baburao Swami 5 ITA No. 844/PUN/2023 the matter back to him for deciding afresh after providing a due opportunity of being heard. The Ld. CIT(A) may make an attempt for service of the notice through physical mode also if notices issued through e-mail remain non-complied. In view of the facts and circumstances of the case, the ground No. 1 of appeal of the assessee is allowed. Since we have already restored appeal to the ld CIT(A), the other alternative grounds of the assessee also stands allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.