Income Tax Appellate Tribunal - Agra
Mr. Khuriram, Mathura vs Ito.- 1(3)(2), Mathura on 16 May, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL
AGRA BENCH, AGRA
BEFORE: SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
AND
SHRI P.C. YADAV, JUDICIAL MEMBER
ITA Nos. 130, 131 & 147/Agr./2022
Assessment Years: 2011-12 & 2016-17
Mr. Khubiram, v. Income-tax Officer,
128, Goverdhan Chauraha, 1(3)(2), Mathura.
Vishwa Laxmi Nagar, Mathura.
PAN : AIRPR6401P
(Appellant) (Respondent)
Assessee by : None
Revenue by : Sh. Harsh Siddharth Gautam, Sr. DR
Date of hearing : 14.05.2024
Date of Pronouncement: 14.05.2024
ORDER
PER BENCH:
ITA No. 130/Agr/2022:
This appeal has arisen before the Tribunal from the order of Ld. CIT(Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 23.05.2022 (DIN & Order No.ITBA/NFAC/S/250/2022-
23/1043113206(1), which in turn has arisen from the assessment order dated 12.12.2018 passed by the Assessing Officer u/s. 144/147 of the Income-tax Act, 1961 for the assessment year 2011-12. ITA Nos. 130, 131 & 147/Agr./2022 2
2. Brief facts of the case are that the assessee has filed return of income on 13.10.2011 declaring income of Rs.2,54,640/-. As per AIR, assessee has deposited Rs.17,41,500/- in cash in his IDBI bank account. The case was reopened by the Assessing Officer by issuing notice dated 25.03.2018 u/s. 148 of the Act. The assessee did not comply with the said notice. Further notices were issued by the Assessing Officer u/s. 142(1) and 144 and compliance thereof are as under :
Section Date of issuing Date for Remarks
notice compliance
142(1) 01.05.2018 16.05.2018 No compliance
142(1) 27.08.2018 04.09.2018 No compliance
142(1) 08.10.2018 17.10.2018 No compliance
142(1) 19.11.2018 27.11.2018 No compliance
142(1)/144 23.11.2018 30.11.2018 No compliance
3. The assessee did not comply with the said notices, which led to addition of income to the tune of Rs.17,41,500/- in the hands of the assessee.
4. Assessee filed first appeal before Ld. CIT(Appeals). Assessee did not submit any submissions before Ld. CIT(Appeals). The assessee only sought adjournment on two occasions and the details of notices issued by Ld. CIT(Appeals) and compliance thereof are as under :
Notice u/s. Date of Date of Remarks
ITA Nos. 130, 131 & 147/Agr./2022 3
issue compliance
250 18/01/2021 22/01/2021 No compliance
250 25/10/2021 09/11/2021 07.11.2021 seeking adjournment
250 04.04.2022 11/04/2022 06/04/2022 seeking adjournment
5. Ld. CIT(Appeals) dismissed the appeal of the assessee in limine ex parte without deciding the issues on merits by holding as under :
"No written submissions were made by the assessee in response to the notices issued by Commissioner of Income Tax(Appeals) since January, 2021 till date. The Appeal cannot be kept pending for indefinite period without reasonable cause. It is observed that the appellant is not interested in prosecuting the appeal filed by him.
4.6 Hon'ble Punjab & Haryana High Court in the case of Shahbad Cooperative Sugar Mills Ltd., 38 taxman.com 204 (P&H) have held that when notices were not received back, it raises a presumption of service under section 27 of General Clause Act, 1897. In such a situation when the notices have been served upon the Assessee at the addresses specified in the Appeal filed by the Appellant, it is clear that the Appellant has no intention to effectively pursue the Appeal.
4.7 In CIT vs B.N. Bhattacharya (1977) 118 ITR 461 (SC), the Hon'ble Supreme Court while dealing with the issue of prosecution of appeal has stated that "preferring an appeal means more than formally filing it but effectively pursuing it.
4.8 Total non-compliance on the part of the appellant leaves me with no option other than deciding the appeal ex-parte, on merits of the case. In this context, I place reliance on the decision of the Hon'ble Supreme Court in the case of Raymond Woollen Mills Ltd. v. ITO And Others [236 ITR 34](SC) where Hon'ble Supreme Court held that in determining whether commencement of reassessment proceedings was valid it has only to be seen whether there was prima facie some material on the basis of which the department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. The appellant has not furnished any evidences in support of its claims in grounds of appeal 1,2 & 3. Hence, these grounds of appeal are dismissed.ITA Nos. 130, 131 & 147/Agr./2022 4
5.1 Grounds of appeal 4, 5, & 6 challenge addition of Rs.17,41,500/- by A.O. u/s 144/147 and seeks opportunity to explain the source of cash deposit with ICICI Bank.
5.2 The appellant has so far only sought adjournments. It has not furnished any written submission or evidence to explain the source of cash deposits of Rs.17,41,500/- in the saving account of appellant with IDBI Bank. In view of the decision of the Hon'ble Supreme Court in the case of CIT vs. B.N. Bhattacharya (1977)118 ITR 461 (SC) and Hon'ble Punjab & Haryana High Court in the case of Shahbad Cooperative Sugar Mills Ltd., 38 taxman.com 204 (P&H), it is held that appellant is not interested in prosecuting this appeal. In the absence of any submissions by appellant in support of these grounds of appeal, grounds of appeal 4, 5 & 6 are dismissed."
6. Assessee, being aggrieved, filed second appeal with ITAT, Agra Bench, Agra. None appeared on behalf of the assessee when this appeal was called for hearing before Division Bench nor any adjournment application has been filed despite the notice being sent to the assessee which was duly served on the assessee. Ld. Sr. DR supported the orders of the authorities below and prayed for dismissal of the appeal of assessee.
7. We have considered contention of Ld. Sr. DR and perused material on record. We have observed that Ld. CIT(Appeals) has dismissed the appeal of the assessee in limine ex parte without deciding the issues on merits as are required u/s. 250(6) of the Act, wherein Ld. CIT(Appeals) was required to decide the issues on merits in accordance with law, which has not been done in the present case. ITA Nos. 130, 131 & 147/Agr./2022 5 Under these circumstances, order of Ld. CIT(Appeals) cannot be sustained and is liable to be set aside and the issues are restored to the file of Ld. CIT(Appeals) for fresh adjudication on merits in accordance with law. Ld. CIT(Appeals) shall give proper opportunity of hearing to both the parties in set aside proceedings.
8. In the result, appeal of the assessee is allowed for statistical purposes.
ITA No. 131/Agr/2022:
9. This appeal has arisen before the Tribunal from the order of Ld. CIT(Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 23.05.2022 (DIN & Order No.ITBA/NFAC/S/250/2022- 23/1043113738(1) for the assessment year 2011-12, which in turn has arisen from the order of penalty dated 19.06.2019 passed by the Assessing Officer u/s. 271(1)(c) of the Income-tax Act, 1961.
10. These are the consequential penalty proceedings in consequence to the assessment order dated 12.12.2018 passed by the Assessing Officer u/s. 144/147 and the appellate order dated 23.05.2022 passed by Ld. CIT(Appeals), the appeal against which in quantum proceedings has been adjudicated by us in ITA No. 130/Agr/2022. Since we have ITA Nos. 130, 131 & 147/Agr./2022 6 set aside the issues in ITA No. 130/Agr/2022 to the file of Ld. CIT(Appeals) for fresh adjudication, this appeal arising from penalty order in ITA No. 131/Agr/2022, in the fitness of the matter and fairness to both the parties and in the interest of justice, is also liable to be restored to the file of Ld. CIT(Appeals) for fresh adjudication in accordance with law.
11. In the result, appeal of the assessee is allowed for statistical purposes.
ITA No. 147/Agr/2022:
12. This appeal has arisen before the Tribunal from the order of Ld. CIT(Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 20.07.2022 (DIN & Order No. ITBA/NFAC/S/250/2022- 23/1043942292(1), which in turn has arisen from the assessment order dated 24.12.2018 passed by the Assessing Officer u/s. 143(3) of the Income-tax Act, 1961 for assessment year 2016-17.
13. Brief facts of the case are that the assessee has filed return of income declaring income of Rs.4,01,290/- and agricultural income of Rs.1,00,000/-. Case was selected for limited scrutiny through Computer Assisted Scrutiny Selection on the issue that receipts u/s. 194C and ITA Nos. 130, 131 & 147/Agr./2022 7 194J as per 26AS are more than the receipts shown in ITR 4/5/6 and the issue whether contract receipts/fees have been correctly offered for tax. The assessee did not enter appearance before the Assessing Officer despite several notices issued during e-assessment proceedings, which notices have been claimed by the Assessing Officer to have been duly served on the assessee. Assessing Officer framed assessment ex parte by applying net profit rate of 8% on the total receipts of Rs.1,15,44,645/- u/s. 144 of the Act and the income from contract receipt was computed at Rs.9,23,570/- and agricultural income assessed was of Rs.1,00,000/-.
14. Assessee filed first appeal before Ld. CIT(Appeals), which was dismissed by Ld. CIT(Appeals) in limine ex parte as the assessee did not file any submission before Ld. CIT(Appeals) on merits by holding as under :
"4 Determination 4.1 All the Grounds of appeal challenge the assessment order u/s 143(3).
4.2 I have considered the impugned assessment order u/s 143(3), Form 35 and the statements of facts given by the appellant. No written submissions were made by the assessee in response to the notices issued by Commissioner of Income Tax(Appeals). The appeal cannot be kept pending for indefinite period without reasonable cause. It is observed that the appellant is not interested in prosecuting the appeal filed by him.ITA Nos. 130, 131 & 147/Agr./2022 8
4.3 The details of notices issued u/s 250 to appellant are as under:
Notice u/s. Date of issue Date of Remarks
compliance
250 18/01/2021 22/01/2021 No reply
250 05/04/2022 12/04/2022 Sought adjournment on
06.04.2022
250 19.05.2022 24.05.2022 Sought adjournment on
24.05.2022
250 14.07.2022 19.07.2022 No reply
No written submission was made by the assessee in response to the notices issued by Commissioner of Income Tax(Appeals) since January, 2021 till date.
4.4 Hon'ble Punjab & Haryana High Court in the case of Shahbad Cooperative Sugar Mills Ltd., 38 taxman.com 204 (P&H) have held that when notices were not received back, it raises a presumption of service under section 27 of General Clause Act, 1897. In such a situation when the notices have been served upon the Assessee at the addresses specified in the Appeal filed by the Appellant, it is clear that the Appellant has no intention to effectively pursue the Appeal.
4.5 In CIT vs B.N. Bhattacharya (1977) 118 ITR 461 (SC), the Hon'ble Supreme Court while dealing with the issue of prosecution of appeal has stated that "preferring an appeal means more than formally filing it but effectively pursuing it".
4.6 Total non-compliance on the part of the appellant leaves me with no option other than deciding the appeal ex-parte, on merits of the case.
4.7 This appeal has been filed by the appellant claiming that action of the Assessing Officer is not supported by facts and that assessment u/s 144 of the Act is bad in law and that it is unjust. In such a situation, it is for the appellant to furnish submissions with relevant evidences(s), case laws, if any, to support the claim. The burden of proof is always on the person who makes the claim. In this case, it is the appellant who has made the claim by filing the appeal. Thus, in cases where a particular receipt is sought to be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable. Where, however, the assessee claims exemption, the burden is on the assessee to prove it to be exempt. Same is the position in cases of all allowance, deductions, claims or loss, etc. since an appeal is nothing but the claim of the appellant that he has been unjustifiably ITA Nos. 130, 131 & 147/Agr./2022 9 taxed, it is for the appellant to prove its case. The appellant has not availed any opportunity to do so.
4.8 Since, the appellant has not presented any argument or submission or any paper filed in support of its claim, the appeal is decided judiciously based on materials available on record. 4.9 I have carefully gone through the impugned order. The appellant has not appeared during the appellate proceedings. Therefore, the additions made by the Assessing Officer are sustained, on the reasons given in the Assessment Order. Accordingly, these grounds of appeal are dismissed."
15. Assessee filed second appeal before the Tribunal and none appeared on behalf of the assessee despite notice issued. Ld. Sr. DR has relied upon the order of Ld. CIT(A) and prayed that the order of Ld. CIT(Appeals) be confirmed. Ld. Sr. DR fairly submitted that the matter is left to the Bench to take decision.
16. We have considered the contention of Ld. Sr. DR and perused material on record. We observe that Ld. CIT(Appeals) has dismissed the appeal of the assessee ex parte in limine without deciding the issues on merits as per law in terms of section 250(6) of the Act. Ld. CIT(Appeals) is required to decide the issues on merits arising in appeal in accordance with law, which has not been done in the present case and the appeal of the assessee was dismissed in limine ex parte. Therefore, the order of Ld. CIT(Appeals) is not sustainable in the eyes of law and is liable to be set aside for fresh adjudication. In these ITA Nos. 130, 131 & 147/Agr./2022 10 circumstances, we set aside the order of Ld. CIT(Appeals) and restore the matter back to the file of Ld. CIT(Appeals) to decide the appeal of the assessee afresh on merits in accordance with law after providing opportunities to both the parties.
17. In the result, appeal of the assessee is allowed for statistical purposes.
18. In the result, all the three appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open court on 14.05.2024 after conclusion of hearing and reduced in writing and signed on 16.05.2024.
Sd/- Sd/-
(P.C. YADAV) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 16/05/2024
*aks/-