Bhartiben Pinakin Bajaj, Rajkot V. The Income Tax Officer, Ward-2(1)(4), Rajkot

ITA 447/RJT/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9386 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 18-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Transactions in derivatives; Reassessment proceedings
• Section: 148; 144; 142(1); 234B; 139(1)

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 Bhatiben Pinakin Bajaj, Hasmatrai Building, 4- Kotak Streed, Opp. Brahmapuri Hall, Rajkot PAN No: AMRPB4153C (Appellant) Vs The Income Tax Officer, Ward-2(1)(4), Rajkot (Respondent) Appellant by : Written Submission Respondent by : Shri B.D. Gupta, Sr.D.R. Date of hearing : 31-08-2022 Date of pronouncement : 07-09-2022 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- These two appeals have been filed by the Assessee as against the ex parte order dated 08.10.2018 & 03.10.2018 passed by the Commissioner of Income Tax (Appeals)-2, Rajkot and as against the reassessment order passed u/s. 144 read with 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Year (A.Y) 2010-11 and assessment order passed u/s. 144 of the Act relating to Assessment Year 2015-16. ITA Nos. 446 & 447/Rjt/2018 Assessment Years: 2010-11 & 2015-16 I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 2 2. When this appeal is called for hearing today, none appeared on behalf of the assessee. However a undated written submission filed by D.R. Adhia, Authorized Representative of the assessee. On perusal of the records, we do not find any Vakalatnama or Power of Attorney in favour of Mr. D.R. Adhia. 2.1. The brief facts of the case is that the assessee is an individual. For the Assessment Year 2010-11, the assessee has not filed her Return of Income. As per the information available with the department, the assessee had done shares/commodity transactions of Rs. 26,84,238/- during the Financial Year 2009-10 relevant to the Assessment Year 2010-11. The assessee neither filed her Return of Income u/s. 139(1) nor explained the share transactions made by the assessee. Thus the assessment was reopened u/s. 147 and notice u/s. 148 dated 24.03.2017 was issued and duly served upon the assessee. The assessee has not responded to the reassessment notice. Therefore a notice u/s. 142(1) of the Act was issued on 03.07.2017, again there was no response. Therefore a show cause notice dated 17.11.2017 was issued to the assessee for finalization of reassessment proceedings u/s. 144 of the Act and also requesting to submit the assessee’s reply on or before 22.11.2017 at 11:45 A.M. in the office of the Assessing Officer. Again the same was not responded by the assessee. Therefore with the available information on record namely investment in shares of Rs. 26,84,238/- during the Financial Year 2009-10, and in the absence of any explanation by the assessee in spite of many opportunities, the investment is treated as unexplained investment and assessed as unexplained income of the assessee and I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 3 demanded taxes thereon of Rs. 14,81,150/- which is inclusive of interest u/s. 234A, 234B & 234C of the Act vide order dated 26.12.2017 u/s. 144 r.w.s. 147 of the Act. 3. Aggrieved against the reassessment order, the assessee filed an appeal before the Ld. CIT(A)-Rajkot on 09.01.2018. The ld. CIT(A) fixed the case for hearing on 19.04.2018, 14.05.2018, 05.06.2018, 22.06.2018, 10.07.2018, 10.08.2018 and 05.10.2018. In all the seven occasions none appeared on behalf of the assessee. The reassessment also being an ex parte assessment and in the absence of any material available on record, the Ld. CIT(A) dismissed the appeal and confirmed the addition made by the Assessing Officer as follows: 5. In view of above, the appeal is liable to be dismissed for non-prosecution. I find support from the following decisions:- (i) In the case of CIT Vs. B.N. Bhattachargee & Another 118 ITR 461 (relevant pages 477 & 478) wherein their Lordships have held that "the appeal does not mean merely filing of appeal but effectively pursuing it." (ii) In the case of Estate of Late Tukojirao Holker Vs. CWT 223 IR 480 (MP) while dismissing the reference made at the instance of assessee in default made following observations in their order. "if the partly at whose instance the reference is made fails to appear at the hearing, or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, this court is. not bound to answer the reference. (iii) In the case of CIT Vs. Multiplan India Pvt. Ltd. 38ITD 320 (Del). The appeal filed by the revenue before the Tribunal which was fixed hearing but on the date of hearing nobody represented the revenue applicant, nor any communication for adjournment received. There was no communication or information as to why revenue choose to remain absent on that date. The Tribunal on the basis of inherent power treated the appeal filed by the revenue as un-admitted in view of Rule 19 of the Appellate Tribunal Rules, 1963. Coming to the merits of addition I find that the addition of Rs.26,84,238/- with respect to unexplained investment in shares is justified as assessee despite due opportunity did not I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 4 furnish explanation as to the source of such deposits and assessment was completed u/s 144. Thus on the merits also I find that the contested additions are justified. The additions are therefore confirmed on merits as well. 4. Aggrieved against this ex parte appellate order dated 08.10.2018, the assessee very promptly well within the limitation filed an appeal before this Tribunal on 09.12.2018 raising the following Grounds of Appeal: 1. The Ld. CIT(A) has erred in not following guidelines issued by the Hon. Bombay High Court which specifically provides that Law does not empower the CIT(A) to dismiss the appeal on account of non prosecution of appeal by the assessee and has thus also erred in not showing utmost regards towards the Hon. Bombay High Court. The order needs cancellation. 2. The Ld. CIT(A] has erred in not following the statutory provisions of section 250(6) of the IT Act, 1961 and passing a vague and non specify order against the mandatory provisions of the statute and has thus totally shown disregards towards the same. The order needs cancellation 3. The Ld. CIT(A) erred in law as well as on facts in confirming addition of Rs. 26,84,238/-. The same needs cancellation. 4. The Ld. CIT(A) erred in law as well as on facts in confirming addition of Rs. 26,84,238/- though no cogent material is brought by Ld. A.O. The same needs cancellation. 5. The Ld. CIT(A) erred in law as well as on facts in confirming addition of Rs. 26,84,238/- without giving proper opportunity and adequately considering the matter. The same needs cancellation. 6. The Ld. CIT(A) erred in law as well as on facts in confirming addition of Rs. 26,84,238/- based on irrelevant consideration. The same needs cancellation. 7. The Ld. CIT(A) erred in law as well as on facts in confirming addition of Rs. 26,84,238/- although no legal services of the notices are there. The same needs cancellation. 8. The Ld. CIT(A) erred in law as well as on facts in not considering that no due deductions as given while completing assessments. The same needs to be allowed. I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 5 9. Taking into consideration legal, statutory, factual and administrative aspects determination of income ought not to have been confirmed. The determination needs cancellation. 10. Without prejudice, the appellate proceedings are appealed without giving adequate & reasonable opportunity. The order needs annulment. 11. Without prejudice, the assessment made being illegal, void, bad in law and against statutory provisions, needs annulment. 12. Without prejudice, the assessment is based on the notices which are not served legally and the same being invalid. The assessment needs annulment. 4.1. This case was listed for hearing for the first time on 07.07.2022, none appeared on behalf of the assessee. However an adjournment application made by Mr. D.R. Adhia, Authorized Representative of the assessee on the ground of ill health of the assessee, owing to side effects of Covid-19 and requested for 10 to 15 days’ time. The case was adjourned to 11.08.2022. However the Bench was not functioning on 11.08.2022, therefore the case is adjourned to 31.08.2022. None appeared on behalf of the assessee, a undated written submission filed by Mr. D.R. Adhia, Authorized Representative of the assessee. In the written submission it is stated that the assessee could not receive the notices issued by the Ld. Assessing Officer, since she was shifted to Veraval. This submission of the assessee is found to be not correct for the reason that the address shown in the assessment order is Dwarkes Residency, Block No. 71, Gate No. 2, Opp. Railnagar-2, Nr. Popat Para, Rajkot. I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 6 4.1. In the ld. CIT(A)’s order is Dwarkes Residency, Block No. 71, Gate No. 2, Opp. Railnagar-2, Nr. Popat Para, Rajkot the address is being shown. In Form No. 36 is Hasmatrai Building, Kotak Street No. 4, Opp. Brahmupri Hall, Rajkot the address is being shown. Thus consistently the assessee was showing the address of Rajkot only and nowhere the assessee said about the address of the Veraval. This argument of the Ld. A.R. cannot be accepted for the reason that as against the ex parte assessment order, appeal before the Ld. CIT(A) was filed within the time and as against ex parte order passed by Ld. CIT(A) the present appeal is also filed in time before this Tribunal showing only the Rajkot address of the assessee. But the assessee has not shown not even a bit of response to 142(1) notices served by the A.O. and of hearing notices given by Ld. CIT(A). 4.2. As it can be seen from the assessment order, the assessee was given enough opportunities to represent her case however she has not choosen to the present case before the Assessing Officer by producing the details called for and submitting or any explanations of investment in shares and commodities. In the absence of complete details including books of accounts, vouchers etc., it is not possible for the A.O. to make verification of the transactions made by the assessee. It is appropriate to place reliance on the judgment relied in the case of CIT vs. Motor General Finance Ltd. [2002] 252 ITR 449 (Delhi) which is held as follows: "When the assessee fails to produce documents or evidence in connection with the matter at issue, and adverse inference, in terms of section 114 of the Evidence Act, could be drawn to the effect that had those documents been produced, the same would have gone against the interest of the assessee." I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 7 5. Thus in the absence of any materials before the Assessing Officer and non-cooperation of the assessee in spite of various opportunities given to her. The assessing officer has no other option then to make additions against the assessee which does not require any interference. Therefore the grounds raised by the assessee are devoid of any merits as no material is placed before us to substantiate its ground before us. Therefore the appeal field by the assessee is hereby dismissed. ITA No. 447/Rjt/2018 for Assessment Year 2015-16. 6. For the Assessment Year 2015-16, the assessee field her Return of Income on 09.08.2016 declaring total income of Rs. 2,17,240/-. Assessee’s case was selected for scrutiny assessment for the reason “Whether the investment and income relating to securities (derivative) transactions are duly disclosed” by the assessee. It is seen that the assessee has made transaction with M/s. Tradebull Securities Pvt. Ltd. and incurred loss of (-)Rs. 1908. On verification of ledger copy of the Tradebull Securities Pvt. Ltd., it is seen that the assessee has deposited Rs. 4,14,941/- during the year. 6.1. Therefore a show cause notice issued on 17.10.2017 by RPAD fixing the case for hearing on 24.10.2017. The said show cause notice was affixed on the last known address available on record of this office on 26.10.2017. As the assessee has not responded to the notices, the same was added as the same was added as the total I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 8 income of the assessee for unexplained transaction made with respect to investment in shares. 7. This ex parte order was challenged by filing an appeal on 13.07.2017 before the ld. CIT(A), Rajkot. The Ld. CIT(A) fixed the case for hearing on 22.02.2018, 26.03.2018, 09.04.2018, 10.05.2018, 25.05.2018, 19.06.2018, 10.07.2018 and 24.09.2018 and none appeared on the hearings dates. Neither the assessee appeared nor filed any request for adjournment. In the absence of any detail before the Ld. CIT(A) he has confirmed the addition made by the Assessing Officer by this impugned order dated 03.10.2018. 7.1. As against this appellate order, appeal was promptly filed on 19.12.2018 by the assessee. The case was listed for hearing on 07.07.2022, none appeared on behalf of the assessee. However an adjournment application made by Mr. D.R. Adhia, Authorized Representative of the assessee on the ground of ill health of the assessee owing to side effects of Covid-19 and requested for 10 to 15 days’ time. The case was adjourned to 11.08.2022. However the Bench was not functioning on 11.08.2022, therefore the case is adjourned to 31.08.2022. None appeared on behalf of the assessee. However no written submission is being filed in this case, though the assessee claims that change of address, she could not appear before the lower authorities, but ex parte order was promptly challenged by way of an appeal before the Ld. CIT(A) and Ld. CIT(A) ex parte order is also time bound challenged before this Tribunal. However in the absence of any material before the lower authorities. The grounds raised by the assessee without any I.T.A Nos. 446 & 447/Rjt/2018 A.Y. 2010-11 & 2015-16 Page No Bhartiben Pinakin Bajaj vs. ITO 9 evidence are devoid of merits therefore the appeal filed by the assessee is hereby dismissed. 8. In the result, the grounds raised by the assessee are rejected and the appeals are dismissed. Order pronounced in the open court on 07 -09-2022 Sd/- Sd/- (ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 07/09/2022 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