Shri Shailesh Khodabhai Talaviya, Rajkot V. The Income Tax Officer, Ward-2(1)(5), Rajkot

ITA 42/RJT/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6386 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 26-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Peak credit; Reasonable cause; Reassessment proceedings
• Section: 148; 271(1)(c); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted Through Virtual Court) Before: Ms. Annapurna Gupta, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member Shri Shailesh Khodabhai Talaviya, ‘Mangal’, Shakti Society, Sheri No. 13, Near Sardar School, Sant Kabir Road, Rajkot PAN No: AETPT1114M (Appellant) Vs The I.T.O. Ward- 2(1)(5), Rajkot (Respondent) Appellant by : Shri Rajeshdra Singhal, A.R. Respondent by : Shri B.D. Gupta, Sr.D.R. Date of hearing : 30-08-2022 Date of pronouncement : 16-09-2022 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- The present appeal has been filed by the Assessee against the order dated 05.07.2017 passed by the Commissioner of Income Tax (Appeals)-2, Rajkot as against the Assessment order passed under section 144 r.w.s. 147 of the Income Tax Act, 1961 (hereinafter ITA No. 42/Rjt/2019 Assessment Year 2008-09 I.T.A No. 42/Rjt/20219 A.Y. 2008-09 Page No Shri Shailesh Khodabhai Talaviya vs. ITO 2 referred to as ‘the Act’) relating to the Assessment Year (A.Y) 2008- 09. 2. This appeal is filed with the delay of 16 months. The Affidavit filed by the Assessee is as follows: Affidavit of Mr Shailesh Khodabhai Talaviya aged about 44 years 1. I, the above named appellant, is fully conversant of the facts deposed below: 2. That the appellant received appellate order on 17-08-17. 3. That appeal was to be filed by 16-10-2017. 4. That appellant was under impression that the said order was kept aside by family members through oversight. Recently I have received final show cause notice dated 04.02.2019 for default u/s 271(1)(C) of the Act. Thereafter, I approached my tax consultant regarding default u/s 271(1)(c) , he explained me that your appeal order has been finalized dismissing the appeal regarding addition made by the A.O. 5. Thereafter, I have tried to recalled whether any such order is received by me. However, according to me no such order was received. Thereafter, I have asked to my family members whether any such order is received. Thereafter, my wife has realized that one cover was received. However, / she has forgotten to hand over the same. When she handed over the said order to me, I found that it contains order of the Ld. CIT(A), dated 04.07.2017. Based on details on the order, when I have Marked into the order, I found that the same was delivered on 17- 08-2017, however, my wife has forgot to inform me. 6. After this I have taken immediate steps for filing of appeal before your honour and accordingly I am filing appeal on this day and hence appeal is filed within 20 days from the day of getting knowledge about the order. Considering date of delivery i.e. 17-08-2017, appeal is being filed by delay of 16 months approx. 7. Since, as state above there is reasonable cause for delay in filing the appeal and accordingly I earnestly request your honorable members to kindly condone the delay and admit the appeal in the interest of natural justice and oblige. 8. That the appellant filed the appeal on 27-02-2019 stating above facts. I.T.A No. 42/Rjt/20219 A.Y. 2008-09 Page No Shri Shailesh Khodabhai Talaviya vs. ITO 3 9. That in this way there is a delay of 16 months approx. 10. That delay in filing the appeal is because of above facts for which appellant cannot be held responsible. 2.1. On perusal of the above affidavit that no reasonable cause is being made out by the assessee. It is seen from record, the assessee field its Return of Income for the Assessment Year 2008- 09 on 16.02.2009 declaring total income of Rs.1,07,110/-. The assessment was reopened by issuing a notice u/s. 148 based on the information from the department that the assessee had deposited Rs.11,44,950/- in his Savings Bank Account with AXIS Bank Ltd. However the same was not shown in the Return of Income. 2.2. During the reassessment proceedings, six notices were given to the assessee calling for explanation, however the assessee has not responded to the same. Therefore the Assessing Officer passed the ex parte best judgment assessment on 28.12.2015 u/s. 144 r.w.s. 147 of the Act. 3. Aggrieved against the same, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) dismissed the appeal of the assessee by holding as under: 7.2. Ground of appeal 3, 5, 5.1: In these grounds which are the substantial grounds the only issue is the addition on account of unexplained deposits. It is an uncontroverted fact that impugned bank a/c and the transaction therein were not disclosed by assessee. I.T.A No. 42/Rjt/20219 A.Y. 2008-09 Page No Shri Shailesh Khodabhai Talaviya vs. ITO 4 The contention of assessee is that due to lapse on part of accountant this account remained to be disclosed. The assessee has come up with two alternatives, that either the income be taxed on presumptive basis at 8% profit rate or it be assessed on basis of peak theory treating previous withdrawals to be the source of deposits. Having carefully considered facts and circumstances of the case, I am of the considered opinion that income cannot be assumed on whims and fancies of assessee. The two contentions of assessee are contradictory. If the transactions are in the nature of business transactions, there can be no question of earlier withdrawals being available for deposits. On the other hand if the previous withdrawals have been re-deposited, then these cannot be treated as business transaction. The onus is on assessee to prove that the said transactions are in nature of business with some evidence or that the earlier withdrawals have been re-deposited. It is not for AO to make such assumption. Since the assessee has failed to discharge the onus cast upon him to explain the nature of transaction and the source of deposits, I find no infirmity in the action of AO in making the impugned addition treating the deposits as unexplained. The addition is confirmed. Ground of appeal is rejected. 4. Aggrieved against the same, present appeal is filed with the delay of 16 months. It is seen from the record, the assessee is not vigilant enough in handing in tax matters. The assessee’s explanation that he is not aware of the service of the appellate order and his wife forgotten to hand over the same is not found to be reasonable cause. 4.1. It is appropriate to quote at this stage the legal maxim “VIGILANTIBUS, NON. DORMIENTIBUS, JURA SUBVENIUNT” which means, law will help only those who are vigilant. Law will not assist those who are careless of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Thus law confers rights on persons who are vigilant of their rights. The assessee could not demonstrate the I.T.A No. 42/Rjt/20219 A.Y. 2008-09 Page No Shri Shailesh Khodabhai Talaviya vs. ITO 5 reasons for non appearance before the lower authorities as well as before this Tribunal and the reasons stated in the affidavit filed by the assessee is not reasonable cause to condone the huge delay of 16 months in filing the appeal by the assessee. Thus the reasons given by the assessee is not convincing and therefore the delay of 16 months in filing the above appeal cannot be condoned. Therefore the appeal is not maintainable and dismissed as in limine. 4.2. That apart even on merits, the Ld. CIT(A) has clearly rejected the contention of the assessee that due to lapse on the part of the Accountant the cash deposits made in Axis Bank Account could not be disclosed. Assessee’s next alternative contention of that either the income be taxed on presumptive basis at 8% profit rate or to be assessed on the basis of peak theory treating previous withdrawals to be the source of deposits. The ld. CIT(A) clearly held that the income cannot be assumed on whims and fancies of the assessee. The alternative two contentions of the assessee are contradictory to each other. If the cash deposit in the banks are in the nature of business transaction then there can be no question of earlier withdrawals being available for deposits. On the other hand, if the previous withdrawals have been re-deposited, then these cannot be treated as business transaction. Thus the assessee failed to prove the said transaction or the nature of business with some evidence that earlier withdrawals have been re-deposited. Which the assessee has not demonstrated before the Ld. CIT(A). Therefore the Ld. CIT(A) confirmed the addition and treated the deposits as I.T.A No. 42/Rjt/20219 A.Y. 2008-09 Page No Shri Shailesh Khodabhai Talaviya vs. ITO 6 unexplained and dismissed the Grounds raised by the assessee. It is for the above reason, even on merits, the present appeal is liable to be dismissed. 5. In the result, the appeal filed by the Assessee is dismissed. Order pronounced in the open court on 16-09-2022 Sd/- Sd/- (ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 16/09/2022 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, राजकोट