Rishi Prakash , Delhi V. ITO, Ward- 40(4), New Delhi

ITA 5677/DEL/2018

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 1491 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 03-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N C SWAIN
• Keywords: Opportunity of being heard
• Section: 131; 144; 142(1); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES “F” : DELHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER And SHRI NARENDER KUMAR CHOUDHARY, JUDICIAL MEMBER ITA.No.5677/Del./2018 Assessment Year 2009-2010 Sh Rishi Prakash 9, Yadav Nagar, Near Samaipur Badli, Delhi – 110 042. PAN AGVPP6251B [vs. The Income Tax Officer, Ward 40(4), Civic Centre Delhi – 110 002 (Appellant) (Respondent) For Assessee : -None- For Revenue : Sh. NC Swain, CIT-D.R. Date of Hearing : 16.06.2022 Date of Pronouncement : 01.08.2022 ORDER PER ANIL CHATURVEDI, A.M. This appeal by assessee has been directed against the order of the Ld. CIT(A)-XXIV, New Delhi, dated 19.08.2013, relating to the A.Y. 2009-10. 2. The relevant facts as culled out from the material on record are as under : 2.1. The assessee is an individual who filed his return of income for A.Y. 2009-10 on 31.03.2010 declaring income at Rs.3,28,730/-. The case was selected for scrutiny 2 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. assessment. The A.O. issued notice and questionnaire under sections 143(2) and 142(1) of the I.T. Act, 1961 and served on the assessee by speed post. Thereafter, the A.O. provided several opportunities to the assessee for production of requisite documentary evidences vide notices issued under section 142(1) of the I.T. Act, 1961. Since there was no response from the side of the assessee, the A.O. also issued summons under section 131 of the I.T. Act, 1961 dated 19.12.2011 seeking the assessee’s presence on 26.12.2011. Since the assessee neither appeared nor filed a single detail before the A.O. the A.O. computed the total income of the assessee at Rs.28,16,47,798/- by making additions on account of G.P. rate and expenses and addition on account of sundry creditors against the declared income of Rs.3,28,730/- by passing assessment order on 27.12.2011 under section 144 of the I.T. Act, 1961. 2.2. Aggrieved by the order of the A.O. the assessee carried the matter before the Ld. CIT(A). CIT(A) vide order dated 19.08.2013 in Appeal No.180/12-13 dismissed the appeal of the assessee. While dismissing the appeal, CIT(A) 3 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. at para 4 of his order has noted that notice u/s 250 of the Act was issued twice through Registered Post at the assessee’s address but the notices were returned back by the postal authorities. On the merits he noted that in the absence of any explanation regarding the creditors and claim of expenses with supporting documents such as bills and vouchers, he find no reason to differ from the findings of the A.O. and accordingly, the Ld. CIT(A) confirmed the order of the A.O. 3. Aggrieved by the order of the Ld. CIT(A), the assessee is now in appeal before the Tribunal by raising the following grounds : 1. “That the learned Commissioner of Income Tax (Appeals) has grossly erred both in law and on facts in upholding the order of assessment framed u/s 144 of the Act determining the income of the appellant at Rs. 16,47,798/- (which has been modified by the learned C1T(A) to 28,16,47,798/-) as against the returned income of Rs. 3,28.730/-. 4 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. 2. That the learned Commissioner of Income Tax (Appeals) has grossly erred in law in disposing off the appeal of the appellant exparte without providing the appellant a proper and meaningful opportunity of being heard which is in violation of the principles of natural justice and hence unsustainable in law. 3. That the learned Commissioner of Income Tax (Appeals) has grossly erred in failing to appreciate that none of the notices issued were served on the appellant as appellant had closed its business and the premises from where it was carrying on its business was a rented premises and after the closure of the business, it had vacated the premises. 4. That the learned Commissioner of Income Tax (Appeals) has grossly erred in failing to appreciate that the appellant was seriously injured by bullet in the month of October, 2012, and hence w as unable to follow up the appellate proceedings. 5 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. 5. That the learned Commissioner of Income Tax (Appeals) has grossly erred in upholding the rejection of the books of account and enhancement of the GP rate, whereby an addition of Rs.22,39,776/- was made. 6. That the learned Commissioner of Income Tax (Appeals) has grossly erred in upholding the adhoc disallowance of Rs.1,87,880/- being 30% of expenditure debited in the profit & loss account. 7. That the learned Commissioner of Income Tax (Appeals) has grossly erred in upholding the addition of Rs.27,88,86,506/- as income from undisclosed sources in respect of sundry creditors, failing to appreciate that such addition is unsustainable in law'. The above grounds of appeals are independent of, and without prejudice to each other. That the appellant craves leave to add, alter, amend or withdraw all or any grounds herein or add any further grounds as may be considered 6 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. necessary either before or during the hearing of these grounds.” 4. The case file reveals that the Registry issued defect notice to assessee for compliance duly intimating that appeal fees is short by Rs.10,000/-, Tribunal Fee Challan not filed, Grounds of appeal before Ld. CIT(A) not filed. However, there were no compliance from the side of the assessee. The appeal was thereafter listed for hearing for the 1 st time on 29.11.2021, on which date, none appeared on behalf of the assessee and therefore the hearing was adjourned to 31.01.2022 with a direction to the Registry to issue notice through RPAD. Again notice was issued by the Registry through RPAD which was returned by the postal authorities. When the matter was listed on 31.01.2022, none appeared on behalf of the assessee and the appeal was adjourned to 31.03.2022 with similar direction to the Registry to issue notice by RPAD. On 31.03.2022 also none appeared on behalf of the assessee and at the request of the Ld. D.R. the appeal was adjourned to 16.06.2022. On 16.06.2022 also none appeared on behalf of the assessee 7 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. nor any application was filed seeking adjournment of the appeal. Preferring an appeal does not mean mere formally filing it but also taking all the steps to effectively pursue the appeal. The conduct of the assessee in not appearing before the lower authorities and the Tribunal shows the negligent approach of the assessee. The fact that the assessee has not appeared before the lower authorities and has also not appeared before the Tribunal despite various opportunities granted to the assessee shows that the assessee is not serious in pursuing the appeal filed by him. In the absence of any co-operation from the side of the assessee, we don’t find any reason to keep the matter pending before us. Further, the defects pointed out to the assessee by the Registry has also not been set right by the assessee even after more than 3 years from the filing of appeal. In such circumstances, we, therefore, have no option but to dispose of the appeal after considering the material available on record and after hearing the Ld. D.R. 5. On the basis of material available on record, AO at para 2 of the order has noted that asesseee on the sale of 8 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. Rs.31,99,68,002/-, had shown gross profit of Rs.9,59,904/- which worked out to 0.30%. He noted that despite various opportunities granted to assessee to produce the books of accounts and supporting evidences, assessee did not produce any evidence or books of accounts. He therefore concluded the purchase and sales to be not verifiable. He thereafter held the G.P. of 0.30% shown by the assessee to be too low and held the G.P. at 1% to be appropriate. He accordingly made addition on account of G.P. at Rs.22,39,776/- (being the G.P. calculated @1% and the G.P. @0.30% shown by the assessee). 6. AO also noticed that assessee after claiming expenses of Rs.6,26,268/- shown the net profit at Rs.3,33,636/-. AO noted that in the absence of books of accounts with bills and vouchers, the entire expenses claimed by the assessee cannot be allowed. He thereafter, disallowed 30% of the expenses, amounting to Rs.1,87,880/- and made its addition. 7. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who upheld the order of AO. Aggrieved 9 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. by the order of CIT(A), assessee is now in appeal before the Tribunal. 8. Before us, the Ld. D.R. strongly supported the orders of the lower authorities contending inter alia that since the assessee has no case to put forth his grievance, he did not chose to appear before the Department, therefore, the orders of the Ld. CIT(A) should be confirmed. 9. We have heard the Ld. D.R. and perused the material on record. We find that before the lower authorities the assessee did not appear and, therefore, the authorities had no option, except to pass ex-parte orders under section 144 of the I.T. Act, 1961 basing on the material available with them. However, when the appeal is filed before the Tribunal by the assessee himself against the orders of the lower authorities, it is expected that the assessee may put forth some documentary evidences in support of his contentions to decide the appeal as it is the duty of the assessee to lead evidence in support of its claim and for the adjudicating authority to decide upon the sustainability of the claim on the basis of the evidence led by the parties 10 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. before it. However, the assessee did not appear before the Tribunal despite numerous adjournments allowed and notices issued through RPAD. In case of any change of address, it is for the assessee to file revised Form No.36 duly mentioning the new address as the notice issued by the Registry was returned unserved with the postal remark “Incomplete address”. No material has been placed by assessee to controvert the findings of lower authorities. In this view of the matter and in absence of any contrary material brought on record to rebut the findings of lower authorities, we dismiss the appeal of the assessee. 10. In the result, appeal of the assessee is dismissed. Order pronounced in the open court on 01.08.2022. Sd/- Sd/- [N.K. CHOUDHARY] [ANIL CHATURVEDI] JUDICIAL MEMBER ACCOUNTANT MEMBER Delhi, Dated 1 st Aug, 2022 VBP/- 11 ITA.No.5677/Del./2018 Sh. Rishi Prakash, Delhi. Copy to 1. The appellant 2. The respondent 3. Ld. CIT(A) concerned 4. CIT concerned 5. DR ITAT “SMC” Bench, Delhi 6. Guard File //By Order// Assistant Registrar, ITAT, Delhi Benches, Delhi.