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TMI Blog2024 (12) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal for non-prosecution. See PREMKUMAR ARJUNDAS LUTHRA (HUF) [ 2016 (5) TMI 290 - BOMBAY HIGH COURT] . Not being able to persuade ourselves to subscribe to the dismissal of the appeal by the CIT(Appeals) for non-prosecution, therefore, set-aside his order with a direction to dispose off the same on merits. Appeal of assessee is allowed for its statistical purposes. - Shri Ravish Sood, Judicial Member And Shri Arun Khodpia, Accountant Member For the Assessee : Shri Sunil Kumar Agrawal, CA. For the Revenue : Dr. Priyanka Patel, Sr. DR. ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Assessment Centre, Delhi, dated 19.02.2024, which in turn arises from the order passed by the Assessing Officer (A.O.) under Sec. 147 r.w.s. 144 r.w.s. 144B of the Income-tax Act, 1961 (in short the Act ) dated 26.03.2022 for the assessment year 2013-14. The assessee has assailed the impugned order on the following grounds of appeal before us: 1. On the facts and circumstances of the case and in law, reopening u/s148/147 is invalid as based on borrowed satisfaction of escaped inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of 5% of credits into bank of Rs. 4,09,20,476 which includes Rs. 3,92,99,344 which is receipts from debtors against accounted/disclosed sales in the books of account u/s44AB; sales has been accepted; books has not been rejected; addition is merely on presumption surmises, is not justified and is liable to be deleted. 5. On the facts and circumstances of the case and in law, Id CIT(A) has erred in sustaining addition of Rs. 20,46,024 is unjustified and is liable to be deleted. 6. The appellant craves leave, to add, urge, alter, modify or withdraw any grounds before or at the time of hearing. 2. Succinctly stated, the assessee had filed his return of income for AY 2013-14 on 29.11.2013, declaring his total income at Rs. 4,94,455/-. Thereafter, the case of the assessee was re-opened u/s 147 of the Act. The assessment was framed by the AO vide his order passed u/s 147 r.w.s 144 r.w.s. 144B of the Act, dated 26.03.2022, wherein, after making addition of Rs. 20,46,024/- i.e. @ 5% of the total credits of Rs. 4.09 crores (approx.) appearing in the assessee company s bank account with HDFC, the total income was determined at Rs. 25,40,479/-. 3. Aggrieved, the assessee carried the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verification unit for which the appellant complied on 08/03/2022 and submitted copy of financial statement, computation of income and copy of Form 26AS, which was duly considered by the AO, requesting the appellant to submit the remaining information on or before of 15th of March, 2022 under principle of natural justice. However, the appellant did not submit the details called for till the date of completion of assessment. As the appellant was non-responsive, the case was completed u/s 147 r.w.s. 144 r.w.s. 1448 of the IT Act on 26/03/2022 as under: The assessee filed Return of Income for the A.Y.2013-14 on 29.11.2013 admitting total income at Rs. 4,94,455. The assessee is engaged in trading business of paddy, rice, other bi-product and transport work. The return was processed u/s.143(1) on 31.08.2018. 2. In this case, there is credible information shared by the Income Tax Officer (Inv.). Raipur that the assessee's bank accounts were mainly credited through RTGS and subsequently followed by cash withdrawals and the total credits made in bank accounts of the assessee were Rs. 4,09,20,476 out of which total cash withdrawals were Rs. 4,01,95,400. The assessee has not complied to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation and financial statements are enclosed herewith. In this connection, it is clarified that the assessee has not filed Return of income in response to Notice u/s. 148 of the Act. He never slated the Return already filed may be treated as Return filed in response to Notice u/s 148 of the I.T. 24.03.2018. The assessee has further stated that the remaining points are under preparation and shall be furnished in next 07 days 7. In the interest of natural justice, the assessee was allowed time to furnish the remaining information on or before 15.03.2022. However, the assessee has again chosen not to furnish the information. As can be seen from the sequence of events, it appears that the assessee was not concerned to comply to the Notices issued u/s.148/142(1) of the IT. Act. The assessee was given enough, sufficient and reasonable opportunities to submit the requisite information. In view of the above non compliances from the assessee, there is no option left but to complete the time barring assessment based on the material available on record and in the manner provided in the provisions of Section 144 of the I.T. Act. 8. As per the information shared by the Investigation Wing, Raip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1961. Interest u/s.234A/2348 charged as per Act. Demand Notice u/s. 156 is issued accordingly. Issued Penalty Notice u/s. 271(1)(c) for under-reporting of income. Penalty Notice u/s. 271(1)(b) for failure to comply Notice u/s.142(1) dated 26.11.2021, 16.12.2021, 05.01.2022 and 18.01.2022 issued separately . Aggrieved by the order of the AO, the appellant filed the present appeal with various grounds of appeal. Upon receipt of the appeal of the appellant, the case was posted for hearing on various dates vide this office notice as mentioned in para no. 3. However the appellant was non-complaint to all the notices. 5. The Appellant has remained non-compliant during the appellate proceedings and has not provided any concrete evidence relating to the addition made by the AO during the course of assessment, for which the assessee filed an appeal, rebutting the same with various grounds of appeal. Thus the appellant has not been able to controvert the stand taken by die of appeal. Thus the appellant has not been able to controvert the stand taken by the Assessing Officer during the Appellate proceedings. The law aids those who are vigilant, not those who sleep upon their rights. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Ld. CIT(A). 7. Per contra, Dr. Priyanka Patel, learned Senior Departmental Representative (for short, Sr. DR) submitted that the assessee consistently had adopted a lackadaisical approach not only before the CIT(A) but also in the course of the assessment proceedings. The Ld. Sr. DR has taken us through the order of the CIT(A) and the assessment order to support her aforesaid claim. 8. Admittedly, it is a matter of fact borne from record that the assessee despite having been put to notice about hearing of appeal on five occasions i.e. (i) 04.08.2023; (ii) 09.11.2023; (iii) 05.01.2024; (iv) 02.02.2024 and (v) 09.02.2024 had failed to participate in the proceedings before the first appellate authority. Also, as stated by the Ld. DR, and rightly so, the assessee had failed to fully comply with the notices issued by the A.O u/ss. 148/142(1) of the Act. At the same time, we are unable to find favour with the manner, in which, the CIT(Appeals) had summarily disposed of the appeal without specifically adverting to the issues based on which the impugned order of assessment was assailed by the assessee before him. All that we find in the order is a mere re-production of the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Sec. 251(1)(a) and (h) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-s. (2) of s. 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under s. 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CITIA) are co-terminus with that of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO to no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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