GRAMIN SEWA SAHAKARI SAMITI, KURUD,DHAMTARI vs. INCOME TAX OFFICER, DHAMTARI, DHAMTARI

आदेश / ORDER

PER RAVISH SOOD, JM:

“(iv) That the Id CIT(A) has erred in sustaining the disallowance of deduction u/s.80P(2) made by the Id AO at Rs. 23,767/ i.e., the gross profit of PDS business of Rs. 2,58,020/ less proportionate expenses of Profit & Loss Account of Rs. 2,34,253/ hence the net profit from the PDS business comes to Rs 23,767/ and full amount is eligible for deduction u/S80P(2)(GJ(11) for such other business. (v) The Learned AO has only allowed a general deduction of Rs 50,000/ U/S 80P(2)(GJ(11) whereas the entire income of the society is deductible U/S 80P (v) The Id AO has erred in disallowing the deduction u/s80P(2) of other income including dividend income of Rs.7,15,444/ and membership fees/entry fees income of Rs.285/ totaling to Rs. 7,15,729/. The learned AO has only allowed dividend income of Rs.1,53,238/ as exempt and the entire amount of Rs 5,62,206/ which is clearly eligible for the deduction u/s80P(2).

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(vi) The entire afore said additions can be explained with the help of the following chart:

The assessing officer had added Rs 2,79,470/ again on A/C of TDS debited to Paddy account whereas the assessee society had already added the same in computation of total income hence the same may be deleted.

2. That the CIT(A) has erred in completing the appellate proceedings without giving reasonable and sufficient opportunity of being heard to the appellant, which is against the principle of natural justice.

3. The appellant craves leave to add, urge, alter, modify and withdraw any ground/grounds before or at the time of hearing of the appeal.”

3. Before proceeding any further, I may herein observe that all the appeals filed by the assessee appellant involves a delay, as under (as per details filed by the Ld. AR):

18 Others Gramin Sewa Sahakari Samiti Maryadit Sl. Name of the society Appeal No. Date CIT order Due date Current Delay No.

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Sr. Date of issue of notice Sent by/through Compliance by No. u/s.250 Appellant 1. 22.02.2021 ITBA No compliance 2. 18.01.2022 ITBA No compliance

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“4. Findings and Decision : In this case, the assessment order u/s. 143(3) of the I.T. Act of the Act has been passed by the AO on 12.02.2016 and the date of service of the order as per the appeal Memo in Form No.35 filed by the appellant is mentioned as 26.02.2016. The appellant has filed the appeal on 22.03.2016, which is within the prescribed period. 4.1 The appellant had not filed his written submission with his Form 35. Therefore, it was given multiple opportunities to file written submission. The notices were issued electronically through the ITBA,

18 Others Gramin Sewa Sahakari Samiti Maryadit but the appellant has failed to comply with the same. The details of the notices issued are as under : Sr. Date of issue of notice Sent by/through Compliance by No. u/s.250 Appellant 1. 22.02.2021 ITBA No compliance 2. 18.01.2022 ITBA No compliance 3. 07.02.2022 ITBA No compliance

4.2 The issue of non-compliance by assessees at appellate stage has been considered and decided by the Hon'ble Supreme Court and Various High Courts as discussed below: 4.3 The Hon'ble Supreme Court in the decision pronounced on October 25, 2019 in the case of PCIT vs. NRA Iron & Steel Pvt. Ltd in Civil Appeal No. of 2019 (Arising out of SLP (Civil) No. 29855 of 2018) has held that if a notice is duly served upon the litigant through its authorized representative, and it was provided sufficient opportunity to appear before the Court and contest the matter but the litigant chooses to let the matter proceed ex-parte, the order cannot be recalled. In the case of the present appellant, the notices to the appellant u/s 250 of the I.T. Act, 1961, have been issued online through the ITBA software, as is required under the Faceless Assessment & Appeals, now in practice. The decision rendered on 18 October, 2019 by the Hon'ble Supreme Court in the case of PCIT vs M/s I Ven Interactive Ltd in Civil Appeal No.8132 of 2019 (Arising out of SLP(C) No.3530/2019) is also squarely applicable. 4.4 The Hon'ble jurisdictional Gujarat High Court in the latest decision on 27.06.2018 in the case of PCIT-3 Vs. Ashokji Chanduji Thakor in 711, 712, 713, 714, 717 of 2018, has held as under:- 1. Heard the learned advocates for the respective parties at length. Perused the impugned judgment and order passed by the learned Tribunal. By impugned judgment and order passed by the learned ITAT, the Tribunal has remitted the matter back to the file of the learned CIT(A) for afresh adjudication by solely observing that —we consider it expedient to restore the 18 Others Gramin Sewa Sahakari Samiti Maryadit matter back to the file of the CIT(A) in the larger interest of justice with a view to enable the assessee to avail opportunity once more." No reasons whatsoever have been assigned by the learned ITAT and learned Tribunal has not at all observed anything on merits of the order passed by the learned CIT(A). Nothing is observed whether assessee was prevented from appearing before the learned CIT(A)and / or there were any justifiable reasons for the assessee not to appear before the learned CIT(A). The impugned order passed by the learned Tribunal is non speaking and unreasoned order. The manner in which, the learned Tribunal has disposed of the appeal is not at all appreciable and same cannot be sustained. Without any cogent reasons and / or justifiable reasons, the matters cannot be remitted casually and lightly. Merely by observing that that "we consider it expedient in the larger interest of justice", a well reasoned order passed by the learned CIT(A) could not have been set aside in such a manner and the matter cannot be restored to the file by the learned CIT(A). Thus, the impugned order passed by the learned Tribunal can be said to be suffering from vice of arbitrariness, unreasonableness and therefore, interference of this Court is called for. It is true that normally High Court would not interfere with the order of remand passed by the learned Tribunal remanding the matter for fresh adjudication. However, provided the order passed by the learned Tribunal is backed by cogent reasons and does not suffer from any unreasonableness and arbitrariness like in the present case. The exercise of powers in such a manner and exercise of such appellate powers and passing the non speaking and non reasoned order and the orders which are passed by the Tribunal, which suffers from unreasonableness and arbitrariness and / or at the whims of the Tribunal not backed by any reason can be said to be pure question of law and therefore, interference of this Court is required. 1 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

18 Others Gramin Sewa Sahakari Samiti Maryadit 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 learned 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 'ear/ fed 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. 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(SS) A No.117/AHD/2015 to 1T(SS) A No.122/AHD/2015 is hereby quashed and set aside and the orders passed by the AO as well as learned CIT(A) are restored. All the appeals are allowed accordingly. No costs." 4.5 The decision of the Hon'ble High Court of Mumbai in the case of M/s Chemipol v/s. Union of India [Central Excise Appeal No.62 of 2009] clearly states, that every court judicial body or authority, which has a duty to decide a matter between two parties, inherently possesses the power to dismiss the case in default. For the sake of reference, the relevant extract of the judicial pronouncement rendered by the Hon'ble High Court of Mumbai quoting decision of Hon'ble Supreme Court in case of Nandramdas Dwarkadas, AIR 1958 MP 260, is reproduced below : "Now the Act does not give any power of dismissal. But it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses." 4.6 The principle that every court that is to decide on a matter of dispute, inherently possesses the power to dismiss the case for 18 Others Gramin Sewa Sahakari Samiti Maryadit default, has been upheld by the Hon'ble Supreme Court in case of Dr. P. Nalla Thampy Vs. Shankar (1984 (Supp) SCC 63 and the case of New India Assurance vs. Srinivasan (2000) 3 SCC 242. In the latter case, the Apex Court has held as under:- "That every court or judicial body or authority, which has a duty to decide a list between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi judicial body. In the absence of the complainant, therefore, the court will be will without its jurisdiction to dismiss the complaint for non prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non appearance of the complainant." 4.7 The Hon'ble Bombay High Court has also laid down the proposition that where the appellant in spite of notice is persistently absent and the Tribunal on facts of the case is of the view that the appellant is not interested in prosecuting the appeal, it can in exercise its inherent power to dismiss the appeal for non-prosecution. In the case of CIT Vs. B. N. Bhattacharya reported at 118 ITR 461, it was held that appeal does not mean merely filing of appeal but effectively pursuing it. 4.8 The Hon'ble ITAT Delhi (ITR No.2006/De1/2011 dt.19.12.2001) in the case of Whirlpool of India Ltd. v. DCIT had dismissed appeal for non attendance at hearings, inferring that assessee was not interested in prosecuting of appeal. 4.9 In the case of Chadha Finlease Ltd. V. ACIT (ITA No.3013/ Del/2011 date of order 20.12.2011) the Hon'ble ITAT Delhi had dismissed the appeal for non-attendance at hearings. 4.10 In its decision in the case of CIT v. Gold Leaf Capital Corporation Ltd. on 02.09.2011 (ITA No.798 of 2009), the Hon'ble High Court of Delhi had held that a negligent assessee should not be given many opportunities just because that quantum of amount involved is high. Necessary course of action is to draw adverse inference; otherwise it would amount to give premium to the 18 Others Gramin Sewa Sahakari Samiti Maryadit assessee for his negligence. When the assessee is non-cooperative, it can naturally be safely concluded that the assessee did not want to adduce evidence as it would expose falsity and non genuineness. 4.11 In view of the facts and legal position discussed above, it is presumed that appellant is not interested in pursuing the appeal and not having any documents, explanation and evidence in support of grounds of appeal raised and thus has not discharged the onus to prove the genuineness of the transactions/ addition made by the AO. It is seen that no written submission filed till date. In view of the lack of prosecution by the appellant, I proceed to decide the appeal on the basis of facts and material available on record.

5. I have carefully gone through the order u/s. 143(3) of the Act, grounds of appeal, the statement of facts as well as the relevant provisions of law. The appellant has filed multiple grounds of appeals but the details furnished by the appellant with the Form 35 does not provide any further information or corroborating evidences. 6 In view of the above clear position of law and respectfully relying upon the judgments of Hon'ble High Courts as above, this issue is dismissed. 6.1 In the result, appeal is dismissed.”

18 Others Gramin Sewa Sahakari Samiti Maryadit Elaborating on the reasons leading to the aforesaid delay, it was submitted by the Ld. AR that there were multi-facet reasons leading to the same, viz. (i) that as the earlier chartered accountant of the assessee society, viz. Shri Rakesh Khandelwal who was looking after the matter before the CIT(Appeals) had unfortunately expired in the month of April, 2021, therefore, the case of the assessee society had thereafter remained unattended; (ii) that the staff of the assessee society which was working under the Government supervision and Jila Sahakari Bank in a rural areas was not computer literate; (iii) that books of the account of the assessee society was being manually maintained; and (iv) that there was no proper access of internet in the rural area where the assessee society was based. Carrying his

18 Others Gramin Sewa Sahakari Samiti Maryadit contention further, the Ld. AR submitted that as the delay involved in filing of the appeal had occasioned due to bonafide reasons and not on account of any malafide intention of the assessee appellant, thus, the same in all fairness be condoned.

18 Others Gramin Sewa Sahakari Samiti Maryadit unattended. The aforesaid explanation of the assessee society does not inspire any confidence for the reason that it ought to have made necessary arrangements for both prosecuting the matter before the first appellate authority and thereafter filing the appeal against the latter’s order well within the prescribed time period contemplated in law. As observed by me hereinabove, the callous and irresponsible conduct of the assessee society is not only discernible from the inordinate delay involved in filing of the present appeal but also, its conduct in the course of the proceedings before the CIT(Appeals), wherein it had adopted an evasive approach and had on no occasion despite having been put to notice about the hearing of the appeal had put up an appearance before the said appellate authority.

18 Others Gramin Sewa Sahakari Samiti Maryadit aforesaid observations, I am of the view that not only the lackadaisical approach adopted by the assessee society in substantially delaying the filing of the present appeal by an inordinate period but also its non-cooperative attitude and sheer carelessness in the course of the proceedings before the CIT(Appeals) wherein it had despite being well informed evaded participation in the course of the proceedings before him, therein, irrefutably evidence the fact that the substantial delay involved in filing of the appeal was not backed by any bona fide reasons, but a careless approach on its part, which it had tried to justify on the basis of its multi- facet contentions that have not legs to stand upon.

18 Others Gramin Sewa Sahakari Samiti Maryadit there appears to be no reason to adopt a liberal view and condone the inordinate delay therein involved. Also, I may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act.

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“A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach, but in the latter case no such consideration may arise and such a case deserves a liberal approach.”

In the present case before me, the delay of 493 days cannot be simply condoned on the basis of the hollow claim of the assessee that the same had occasioned for the multi facet reasons, viz. (i) that as the earlier chartered accountant of the assessee society, viz. Shri Rakesh Khandelwal who was looking after the matter before the CIT(Appeals) had unfortunately expired in the month of April, 2021, therefore, its case for the said reason had, thereafter, remained unattended; (ii) that the assessee society is based in a rural area; (iii) that the staff of the assessee society which was working under the Government supervision and Jila Sahakari Bank in a rural area, was not computer literate; (iv) that books of the account of the assessee society was being manually maintained; and (v) that access of internet was also not proper in the rural area where the assessee society was based. As observed by me hereinabove, the conduct of the assessee society reveals beyond doubt that the delay in filing of the appeal had occasioned on account of sheer negligence and carelessness on its part as regards filing of the present appeal within the stipulated time period.

18 Others Gramin Sewa Sahakari Samiti Maryadit before me the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the inordinate delay of 493 days involved in preferring of the same, therefore, I decline to condone the same and, thus, without adverting to the merits of the case dismiss the captioned appeal of the assessee society as barred by limitation.

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Order pronounced in open court on 05th day of December, 2023.