Ramesh Kumar Jain, Astha V. The ITO, Sehore

ITA 131/Ind/2023

AI Insights

The case involves Ramesh Kumar Jain, the appellant, who contested the order of the Commissioner of Income Tax (Appeals) at the National Faceless Appeal Centre, Delhi, for the assessment year 2013-14. The primary grievances included the dismissal of the appeal for non-prosecution and the confirmation of an addition of Rs.29,00,236 by estimating the gross profit at 3.68%, which the appellant argued was not reflective of the trade's margin. Additionally, the appellant contested the charging of interest under sections 234A and 234B, and the initiation of penalty proceedings under section 271(1)(c). The Tribunal noted that the CIT(A) had dismissed the appeal without deciding on the merits, due to the appellant's non-cooperation, and referenced several precedents supporting the dismissal of appeals under similar circumstances. However, the Tribunal found that the dismissal was not in accordance with the provisions of section 250(6) of the Income Tax Act and thus remanded the case for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130719 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-09-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 10-04-2023
• Other Referred Cases: CIT VS B.N. Bhattacharjee and others [1979] 10 CTR 354 (SC), Estate of Late Tukojirao Holkar Vs CWT [1979] 223 ITR 480 (M.P.), Amitkumar H. Shah Vs. ACIT in ITA No. 2985/Ahd/2010, CIT Vs Multiplan India Pvt. Ltd., [1991] 38 ITD 320 (Del), CIT v. Gold Leaf Capital Corporation Ltd. on 02.09.2011 (ITA No. 798 of 2009)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GAUR
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 271(1)(c); 234B; 22

Judgement Text

Page 1 of 4 आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER ITA No.131/Ind/2023 (Assessment Year:2013-14) Ramesh Kumar Jain Adinath Traders, Mandi Prangan Astha Vs. ITO, Sehore (Appellant / Assessee) (Revenue) PAN: AASPJ 0162 G Assessee by Shri Arpit, Gaur, AR Revenue by Shri Ashish Porwal, Sr-DR Date of Hearing 21.09.2023 Date of Pronouncement 22.09.2023 O R D E R PER VIJAY PAL RAO, JM: This appeal by the Assessee is directed against order dated 20.02.2023 of Commissioner of Income Tax (Appeal), National Faceless Appeal Centre (NFAC), Delhi for A.Y.2013-14. The assessee has raised following grounds of appeal: “1.That on the facts and in the circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in dismissing the appeal without affording proper opportunity of being heard to the assessee. 2. That on the facts and in the circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs.29,00,236/- made by estimating the gross profit @3.68% without appreciating the fact that in this line of trade there is no such margin. Thus, the order passed by the Learned CIT(A) is unjust, unfair and deserves to be deleted. 3. That on the facts and in the circumstances of the case, charging of interest u/s 234A and 234B is not justified. ITA No.131/Ind/2023 Ramesh Kumar Jain Page 2 of 4 Page 2 of 4 4. That on the facts and in the circumstances of the case, initiation of penalty proceedings u/s 271(1)(c) is not justified.” 2. At the time of hearing the Ld. AR of the assessee has submitted that the Ld. CIT(A) has dismissed the appeal of the assessee ex-parte for non- prosecution and pleaded that the assessee may be given one more opportunity to present its case before the Ld. CIT(A) along with supporting evidence. 3. On the other hand, Ld. DR has raised no objection if the matter is remanded to the record of the Ld. CIT(A) for fresh adjudication on merits. 4. Having considered the rival submission and careful perusal of the impugned order we note that the CIT(A) has dismissed the appeal of the assessee for want of prosecution/submitting any explanation or supporting evidence. The Ld. CIT(A) has not decided the grounds of appeal on merits but dismissed the appeal of the assessee for non- prosecution/non-cooperation. The relevant part of the impugned order in para 7.2 & 7.6 is as under : “7.2 As mentioned in Para 6 of this appeal order, this office has issued several letters/notices to file written submission. However, appellant has not filed any written submissions. The letters were issued through ITBA System at the e-mail ID provided in ITBA System. From the above conduct of the appellant, it is evident that the appellant is no more interested in pursuing the appeal. The Hon'ble Supreme Court in the case of CIT VS B.N. Bhattacharjee and others [1979] 10 CTR 354 (SC) observed that preferring an appeal, means effectively pursuing it. The Hon'ble M.P. High Court in the case of Estate of Late Tukojirao Holkar Vs CWT [1979] 223 ITR 480 (M.P.) dismissed the reference filed at the instance of the assessee for default and for not taking necessary steps. Considering the conduct of the appellant in the present circumstance, I am of the view that the appellant is not interested in pursuing the appeal. This view has been affirmed by Hon'ble ITAT Ahmedabad in case of Amitkumar H. Shah Vs. ACIT in ITA No. 2985/Ahd/2010 vide their order dated 31.12.2013, wherein following the order of ITAT Delhi Bench in the case of CIT Vs Multiplan India Pvt. Ltd., [1991] 38 ITD 320 (Del), ITAT has dismissed the appeal filed by the assessee for want of persuasion. Under these circumstances, the current appeal of the appellant is liable to be dismissed. ITA No.131/Ind/2023 Ramesh Kumar Jain Page 3 of 4 Page 3 of 4 7.3 xxxxxx 7.4 xxxxxx 7.5 xxxxxxx 7.6 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 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.” 4.1 Therefore, the impugned order of the Ld. CIT(A) is not in accordance with the provisions of section 250(6) of the Income Tax Act. Accordingly, in the facts and circumstances of the case and in the interest of justice, the same is set aside and the matter is remanded to the record of the CIT(A) for fresh adjudication on merits after granting one more opportunity of hearing to the assessee to present its case. 5. In the result, the appeal filed by the assesse is allowed for statistical purposes. Order pronounced in the open court on 22.09.2023 Sd/- Sd/- (B.M. BIYANI) (VIJAY PAL RAO) Accountant Member Judicial Member Indore, 22 .09.2023 Patel/Sr. PS ITA No.131/Ind/2023 Ramesh Kumar Jain Page 4 of 4 Page 4 of 4 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore