SANJAYKUMAR DHIRUBHAI HIRPARA,KHAMBHA vs. AO, ITO, WARD-3(1)(2), RAJKOT

The Registry has noticed that there is a delay of two days in filing the appeal. The assessee explained that the above appeal was filed through E-Filing on 07.11.2022. There were some clerical mistake instead of ITO, Ward-3(1)(2), Rajkot, it is wrongly typed as CIT(A), Rajkot. After rectifying the mistake, the assessee filed physical Appeal on 08-11-2022 but that day happens to be a national holiday (Guru Nanak Gurpurab), therefore physical appeal was filed on 09-11-2022 thereby two days delay in filing the appeal. The Ld. D.R. has no objection in condoning the delay. Hence the delay is condoned.

It is seen from record, the case is listed for hearing 5th time today, even in the previous hearings None appeared on behalf of the assessee, in spite of service of notices to the assessee. Neither the assessee nor his Authorized Representative, C.A. Shri Janak Tarapara appeared for the hearing. The Ld. D.R. Mr. B.D. Gupta appearing for the Revenue brought to our notice even the reassessment order is an exparte assessment order, wherein cash deposit to the extent of Rs. 56,64,000/- is an issue. The Ld. Assessing Officer adopted peak credit of Rs. 30,05,227/- as the unexplained income of the assessee. Even before ld. CIT(A) in spite of six hearing notices given from 22-01-2021 till 18-08-2022. The assessee failed to file any submission nor request for any adjournment of hearings. Therefore the Ld. CIT(A) after going into Page No 3 Sanjaykumar dhirubhai Hirapara Vs. AO., ITO the merits of the case with available material on record, dismissed the assessee appeal.

We have given our thoughtful consideration and perused the materials available on record. It is seen from the assessment records, the assessee has not responded to the various notices and not filed relevant documents and materials before the Assessing officer. Therefore the Assessing officer passed an exparte order u/s. 144 of the Act. Even before the Ld. NFAC, six opportunities of hearing were given to the assessee from 22-01-2021 till 18-08- 2022, the assessee neither filed written submissions nor requested for any adjournment of the hearings. Therefore the Ld. CIT(A) passed an exparte appellate order holding that the peak credit adopted by the Assessing Officer is found to be acceptable. We do not find any infirmity in the order passed by the Ld. CIT(A) on Page No 4 Sanjaykumar dhirubhai Hirapara Vs. AO., ITO merits. Further the Jurisdictional High Court in the case of Ashokji Chanduji Thakor (cited supra) held as follows: ...Both these appeals are filed by the Revenue. Revenue has challenged the judgment of the Income Tax Appellate Tribunal, Ahmedabad [Tribunal for short dated 27th December 2017 by which the Tribunal was pleased to remand the proceedings before the CIT(A) for fresh adjudication. The Tribunal noted that despite service of notices, before CIT(A) no one appeared on behalf of the assesses. No written response was also made. Despite this, the Tribunal placed the matter back before the Ld. CIT(A) for fresh consideration. We may noticed that in case of the group of assessees, this Court in Tax Appeal No. 710 of 2018 and connected appeals, by judgment dated 27th June 2018 had reversed such a view of the Tribunal. The Court was of the opinion that the Tribunal had exercised its discretion without stating reasons. Eventually, the Court made the following observations: "8.0. It is required to be noted that in the present case right from very begging i.e. assessment proceeding, assessee was non cooperative. Number of opportunities were given by the AO, however assessee did not cooperate and even did not file any reply. Therefore, considering the material on record, the AO made addition as unexplained investment. Even before the learned CIT(A) also the assessee was non cooperative. Number of opportunities were given to the assessee to represent his case, however none remained present on behalf of assessee. Thereafter, the learned CIT(A) proceeded further with the appeal ex parte and decided the appeal on merits and confirmed the order passed by the AO confirming additions of unexplained investment. Thus, even learned CIT(A) also decided the matter on merits. On going through the orders passed by the AO as well as learned CIT(A), we are of the opinion that in absence of any explanation by the assessee on the investment in question, AO was justified in making the addition of unexplained investment and thereafter leamed CIT(A) was justified in confirming the same. Therefore, even the order passed by the learned CIT(A) which was on merits was not required to be interfered with by the learned CIT(A) and ought not to have been quashed and set aside without assigning any reasons. Under the circumstances, the impugned orders passed by the learned Tribunal cannot be sustained. 9.0. In view of the above and for the reasons stated above, the questions of law are answered in favour of the Revenue and against the assessee and impugned common judgment and order passed by the learned Tribunal in IT(SSJA No.117/AHD/2015 to Page No 5 Sanjaykumar dhirubhai Hirapara Vs. AO., ITO

Respectfully following the above judgment of the Jurisdictional High Court, we have no other option than to dismiss the appeal filed by the assessee.

In the result, the appeal filed by the Assessee is hereby dismissed.