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Income Tax Appellate Tribunal, CIRCUIT ‘SMC’ BENCH, VARANASI
Before: SHRI.VIJAY PAL RAO
SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 3.1.2019 of CIT(A), Gorakhpur for the assessment year 2014-15. The assessee has raised the following grounds which read as under:- “i. Because the Income Tax Officer Ward-2(2) has erred in law on facts in completing the Assessment u/s 143(3) of the I.T. Act, 1961 at income of Rs. 33,69,900/-. ii. Because the Commissioner of Income Tax Appeal has erred in law of facts in confirming the addition of Rs. 31,54,000/- as cash deposit in bank account of assessee. iii. Because the Commissioner of Income Tax Appeal has erred in law of facts in confirming the addition of Rs. 2,621/- as interest from saving bank account. iv. Because in view of factual and legal position no addition is called for and addition made by the ACIT in erroneous. v. Because the order against in contrary to law facts and principals of natural justice. vi. Assessee may amend, alter or add any grounds of appeal before or at the time of appeal.”
The learned AR of the assessee has submitted the written submissions as under:- “BEFORE THE INCOME TAX APPELLATE TRIBUNAL, VARANASI WRITTEN ARGUMENT IN THE CASE OF SH. SHASHANK JAISWAL, JATEPUR NORTH, MANSHA BAGH, GORAKHPUR ASSTT YEAR 2014-15 Respected Sir, In the above case an assessment order was passed by the Income Tax Officer, Ward-2(2), Gorakhpur after added Rs. 31,54,000/- as income of the assessee, after dismissal of first appeal, I have preferred an appeal before Your Honour. During the year under consideration I was only 24 years old and unemployed, my father maintained and used my bank account no. 100008008982 at Indusind Bank, Gorakhpur and almost transactions was done by him, a confirmation letter in shape of Notory Affidavit from father Shri. Shiv Shankar Jaiswal is also enclosed herewith for refrence and support on which he has accepted that said disputed amount was deposited by him for his business purposes only. Shri. Shiv Shankar Jaiswal is also assessd to tax vide PAN-AAGPJ3912J, filed his ITR, Copy of Shri shiv Shanker Jaiswal is also enclosed herewith for reference. In view of above that the said amount was related to Shri Shiv Shanker Jaiswal (father), Your Honour are very kindly requested to delete the above addition in natural justice. Thanking You Sir, Yours Faithfully Sd/- Shashank Jaiswal”
The assessee has also filed an affidavit of one Sh. Shankar Jaiswal who is the father of the assessee to say that the disputed deposit in the bank account of the assessee belongs to his father in respect of the development and expansion of his business and therefore, when the assessee was not having any source of income, the same cannot be added as income of the assessee. In the affidavit, the father of the assessee owned up the disputed amount of Rs. 31,54,000/- in the bank account of the assessee.
On the other hand, learned DR has submitted that the assessee has not explained the source of deposit in the bank account either before the Assessing Officer or before the CIT(A) therefore, this explanation of the assessee at this stage cannot be accepted.
Having considered the written submissions and affidavit filed was assessee as well as the contention of the learned DR, it is noted that the Assessing Officer has made the addition of the entire amount of deposits of Rs. 31,51,000/- in the bank account of the assessee. The assessee challenged the order of the Assessing Officer before the CIT(A) however, none has attended the proceedings before the CIT(A) and consequently the appeal of the assessee was dismissed for non prosecution. The relevant part of the order of the CIT(A) in para 5 is as under:- “5. The aforesaid non-compliance on part of appellant reveals beyond doubt that appellant has nothing to say in the matter of this appeal. It can be concluded that appellant is not interested in prosecution of the present appeal and same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in well known dictum “VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. In view of the above mentioned fats and by placing reliance on decision of Hon'ble ITAT, Delhi Bench in case of CIT vs. Multiplan India Ltd. reported in 38 ITD 320 and decision of Hon'ble M.P. High Court in case of Estate of Late TukojiRaoHolkar vs. CWT (1997) reported in 223 ITR 480 the present appeal is liable to be dismissed.”
Thus, it is clear that the CIT(A) has not decided the appeal of the assessee on merits, but the same was dismissed in limine when nobody has attended the proceedings before the CIT(A). There is no quarrel on the point that the CIT(A) ought to have decided the appeals on merits instead of dismissing for non prosecution. Accordingly, in the facts and circumstances of the case, the impugned order of the CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the same afresh on merits after giving one more opportunity of hearing to the assessee. 3
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court after conclusion of hearing on 18.04.2022.