Satish kumar Srivastava, Kushinagar V. ITO, Kushinagar, Kushinagar

ITA 49/VNS/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9685 (ITAT-VARANASI)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit; Set aside
• Section: 147; 148; 144; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT ‘SMC’ BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA No.49/VNS/2020 Assessment Year: 2010-11 Satish Kumar Srivastava, Bolchaha, Lalatola, Padrauna, Kushinagar, U.P. PAN-BGIPS1868P v. Income Tax Officer, Kushinagar, U.P. (Appellant) (Respondent) Appellant by: Shri. Ashish Bansal, Adv Respondent by: Sh. A.K. Singh, Sr. D.R. Date of hearing: 23.05.2022 Date of pronouncement: 07.06.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 09.12.2019 of CIT(A) for the assessment year 2010-11. The assessee has raised the following grounds:- “1. Because the ld. CIT(A) has erred in dismissing the appeal on the grounds that the notices were not complied. 2. Because the notice dated 18.09.2019 fixing 10.10.2019 was not received by the appellant or by his counsel, and the appeal has been decided on 08.12.2019 i.e. after a gap of about 2 months. 3. Because no notice of hearing was issued during the gap of 2 months therefore, great injustice has been done in the case by dismissing the appeal in default. 4. Because the ld. CIT(A) has erred in not deciding the appeal on merit on the basis of grounds taken in the appeal and additional grounds of appeal taken on 27.02.2018. 5. Because, as the assessment order has been passed u/s 147/144 and the appeal has also been decided ex parte, both the orders are liable to be set aside and to be restored to the ld. I.T.O. for fresh assessment.” 2. The assessment was completed under section 147 read with section 144 of the Act when nobody attended or responded to the notice issued by the Assessing Officer under section 148 as well as under section 133(6) of Income Tax Act. The Assessing Officer ITA No.49/VNS/2020 Satish Kumar Srivastava 2 made an addition of Rs. 34,45,014/- on account of the deposits in the bank account of the assessee during the year under consideration and consequently the total income of the assessee was assessed as the total deposit was found in the bank account of the assessee. The assessee challenged the action of the Assessing Officer before the CIT(A). But the appeal of the assessee was dismissed due to non prosecution. 3. Before the Tribunal, the learned AR of the assessee has submitted that assessee did not receive the notices issued by the Assessing Officer and therefore, he could not participate in the assessment proceedings. He has further submitted that though the CIT(A) has dismissed the appeal of the assessee for non prosecution however to avoid the further litigation, the peak credit in the bank account of the assessee can be assessed as income of the assessee. Thus the learned AR has pleaded that a peak credit of 5,44,000/- in the bank account of the assessee may be assessed as income of the assessee. 4. On the other hand, learned DR has submitted that the assessee has not filed any return of income in response to the notice under section 148 of the Act. Consequently, the Assessing Officer framed the assessment under section 144 of the Income Tax Act. Even nobody attended the proceedings before the CIT(A) despite nine opportunities were granted by the CIT(A) as recorded in the impugned order. Thus the assessee cannot be allowed to make a new case at this stage. 5. I have considered the rival submissions as well as relevant material on record. Undisputedly, the assessment order was passed under section 144 when the assessee has not responded to the notice under section 148 nor any return of income was filed. The Assessing Officer also issued notice under section 133(6) to the assessee but there was no response on behalf of the assessee to the said notice. The CIT(A) after giving the details of as many as nine dates for hearing dismissed the appeal of the assessee in limine in para 5 and 6 as under:- “5. The aforesaid non-compliance on part of appellant reveals beyond doubt that appellant has nothing to say in the matter of this appeal. It can be concluded that appellant is not ITA No.49/VNS/2020 Satish Kumar Srivastava 3 interested in prosecution of the present appeal and same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in well known dictum “VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. In view of the above mentioned fats and by placing reliance on decision of Hon'ble ITAT, Delhi Bench in case of CIT vs. Multiplan India Ltd. reported in 38 ITD 320 and decision of Hon'ble M.P. High Court in case of Estate of Late TukojiRaoHolkar vs. CWT (1997) reported in 223 ITR 480 the present appeal is liable to be dismissed. 6. Accordingly, I have no reasons to interfere with the assessment order passed by the Assessing Officer. The action of the Assessing Officer is upheld. Grounds of appeal are dismissed.” 6. As evident from above, the CIT(A) has not decided the appeal of the assessee on merits and the same was dismissed for non prosecution which is contrary to the provisions of section 250(6) of the Income Tax Act. Accordingly, the impugned order of the CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the appeal afresh on merits by a speaking order after allowing one more opportunity of hearing to the assessee. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 07.06.2022. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 07/06/2022 Varanasi/Allahabad Sh Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S.