Request to restore matter not granted as matter not represented by assessee since long time: ITAT Raipur

Nitesh Kumar Goyal Vs DCIT (ITAT Raipur)

ITAT Raipur held that law will help only those who are vigilant and will not assist the one who are careless. Accordingly, request of assessee to restore matter back not granted as assessee has chosen not to represent its matter for more than 08 years.

Facts- Assessee is an individual, engaged in the trading of computer and computer accessories and has various business premises at Raipur, Bhilai and Ambikapur. The original assessment in the case of assessee was completed u/s 143(3) of the Act on 28.03.2016, assessing the total income at Rs. 1,50,84,533/- by estimation of net profit @ 8% of sales and thereby making addition of Rs. 1,33,97,283/-. Additions made by the AO at Rs. 1,33,97,283/-was confirmed by CIT(A) -II, Raipur.

ITAT allowed the appeal with various directions. In view of directions of the tribunal, the assessee was provided with another opportunity to get his case assessed afresh. However, no replies were being submitted by the assessee. Left with no option, AO completed the set aside reassessment proceedings taking recourse of best judgment assessment available with him. The assessment thereafter was culminated determining the total assessed income at Rs.1,50,84,533/-. CIT(A) dismissed the appeal of the assessee. Being aggrieved, the present appeal is filed.

Conclusion- The proceedings have been prolonged for almost more than 08 years, on account of assessee’s non-attentive behaviour towards the tax proceedings, which were noted by both the revenue authorities in their orders in first round of litigation as well as in the second round. However, the assessee remains negligent under his own volitions and for that reason the revenue authorities are compelled to pass appropriate orders.

There is a well-known dictum of law “VIGILANTIBUS, NO DORMENTIBUS, JURA SUBVENIUNT” which means law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim one’s right, he/she must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Law confers rights on persons who are vigilant of their rights.

Held that the request of the assessee to restore the matter back to the file of Ld. CIT(A) cannot be acceded to, especially in a case wherein the assessee has chosen not to represent its matter for more than 08 years, even after the opportunity by the tribunal, the assessee remain non-attentive, thus, have not furnished required information and explanation before the lower authorities when adequate opportunities have been afforded.

FULL TEXT OF THE ORDER OF ITAT RAIPUR

The captioned appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals), NFAC, Delhi (in short “Ld. CIT”), u/s 250 of the Income Tax Act, 1961 (in short “The Act”), dated 14.02.2024 for the Assessment Year 2013-14, which in turn arises from the reassessment order under section 144 r.w.s. 254/ 144B of the Act, passed by the Assessing Officer, NFAC, Delhi (in short “Ld. AO”), dated 20.09.2021, in set aside proceedings as per direction in the order of ITAT, Raipur in ITA No. 234/RPR/2017 dated 16.05.2019.

2. The grounds of appeal raised by the assessee are as under:

1. That the order of Ld. CIT (A) NFAC is bad in law as well as on facts and the entire additions of Rs. 1,33,97,283/- sustained by the Ld. CIT(A) NFAC are bad in law and therefore liable to be deleted.

2. In the facts and circumstances of the case, the Ld. CIT(A) NFAC has grossly erred in Law as well as on facts in rejecting books of accounts by invoking section 145(3) of the income tax act and therefore the entire addition of Rs. 1,33,97,283/- liable to be deleted.

3. In the facts and circumstances of the case, the Ld. AO NFAC has erred in estimating net profit @8% of the sale and thereby made huge addition of Rs. 1,33,97,283/- which is absolutely bad in law and liable to be deleted.

4. Without prejudice to ground no. 1 to 3, the estimation of net profit @8% is highly excessive, unreasonable and be reduced reasonably.

5. That the appellant was prevented by sufficient cause from filing written submissions / replies before Ld. AO in the second round of assessment proceedings as neither the notices were served on the appellant nor the same was served on the appellants email id, hence the order of the AO is bad in law having being passed without providing sufficient opportunity of being heard and in utter violation of principles of natural justice.

6. In the facts and circumstances of the case, the assessment order so passed is in violation of principles of natural justice as the same has been passed in a fortnights time from 31.08.2021 to 20.09.2021 without providing opportunity of being heard and moreover when the income tax portal was not functioning smoothly and efficiently.

7. That the appellant was prevented by sufficient cause from filing written submissions / replies even in the second round of appellate proceedings as notices were NOT served on email id mentioned in Form No. 35 ([email protected]), but was wrongly sent on old email id [email protected] which is not used by the appellant, resulting in lack of opportunity and violation of principles of natural justice.

8. In the facts and circumstances of the case, the appellate order so passed is in violation of principles of natural justice as the same has been passed within a very short period of time by way of issue of notices dated 06.11.2023, 04.01.2024 and 02.02.2024, which was never followed by a real time alert as required by Law.

9. The appellant craves leave to urge, add, amend, alter, enlarge, modify, substitute, delete or withdraw any of the ground or ground and to adduce fresh evidence at the time of hearing of the appeal.

3. The brief facts of the case are that the assessee is an individual, engaged in the trading of computer and computer accessories and has various business premises at Raipur, Bhilai and Ambikapur. Return of income for A. Y. 2013-14 has been filed by the assessee on 31.03.2014, showing a total income of Rs. 16,87,250/-. The original assessment in the case of assessee was completed u/s 143(3) of the Act on 28.03.2016, assessing the total income at Rs. 1,50,84,533/- by estimation of net profit @ 8% of sales and thereby making addition of Rs. 1,33,97,283/-. Aggrieved by the order u/s 143(3), the assessee preferred an appeal before the Ld. CIT(A)-II, Raipur, however, in absence of any compliance in the appellate proceedings, the appeal of the assessee was dismissed with the observation that the appellant is not interested in pursuing the appeal and had nothing to say against the additions made by the AO. Therefore, the additions made by the AO at Rs. 1,33,97,283/-was confirmed by the Ld. CIT(A) -II, Raipur.

4. Dissatisfied with the decision of Ld. CIT(A), assessee carried the matter before Income Tax Appellate Tribunal (ITAT), Raipur. The appeal of the assessee was disposed off by the tribunal in ITA No.234/RPR/2017 on 16.05.2019 by setting aside the grounds raised by the assessee in his appeal, under the following observations:

2. Without going to the grounds of appeal, at the outset, ld. Counsel for the assessee brought to our attention that an ex-parte order was passed by the CIT(A) and though the assessee submitted that he could not appear before the CIT(A) for justifiable reasons. On these facts, ld. Counsel made a statement at Bar that this time the assessee would make proper representation before the CIT(A) and pleaded for grant of one more opportunity of being heard to the assessee.

3. Considering the above facts as well as objection of the ld. DR for the Revenue, we are of the opinion that the right of filing the appeal is granted by the Statute to the assessee-taxpayers. In this case, the assessee wanted to invoke the said right and paid the appeal fees in this regard conveying his seriousness of pursuing the appeal. The reasons for non-attendance before the CIT(A) cannot be reason to reject the assessee’s right of natural justice of granting due opportunity of being heard by the quasi-judicial authorities under the law. Therefore, we are of the opinion that an opportunity should be granted to the assessee in respect of the assessment year under consideration. Accordingly, we remand all the issues raised by the assessee in his appeal to the file of the Assessing Officer for fresh adjudication. The Assessing Officer shall grant a reasonable opportunity of being heard to the assessee. Accordingly, the grounds raised by the assessee in his appeal are allowed for statistical purposes.

4. In the result, the appeal of the assessee is allowed for statistical purposes.

5. In view of aforesaid directions of the tribunal, the assessee was provided with another opportunity to get his case assessed afresh by the Ld. AO. The matter, therefore, was taken up for fresh assessment, accordingly, notice u/s 142(1) of the Act along with questionnaire were issued to the assessee on 24.02.2021 and 02.09.2021, which were duly served to the assessee through ITBA portal. As observed by the Ld. AO, the assessee again remains non-compliant as no reply to the statutory notices issued have been submitted by the assessee. Ld. AO therefore, taking cognizance of the principle of natural justice and to provide an opportunity of being heard, issued a show cause notice dated 08.09.2021, proposing to complete the assessment proceedings as directed by the tribunal on the basis of material / information available in absence of assessee’s response to furnish the requisite information. Ld. AO, thereafter with verification of assessment record has prepared a statement depicting efforts put in by the revenue in the course of assessment proceedings and the conduct of the assessee showing lack of integrity, responsiveness and accountability. For the sake of clarity, the statement prepared by Ld. AO is culled out as under:

6. Ld. AO, in backdrop of aforesaid events, reflecting lackadaisical and careless approach of the assessee, having no option left with him, therefore, has proceeded to complete the set aside reassessment proceedings taking recourse of best judgment assessment available with him.

7. The assessment thereafter has been completed on 20.09.2021 u/s 144 r.w.s. 254/ 144B of the Act. While completing the assessment, Ld. AO had time and again mentioned in the order that the assessee is not complied or furnished any response to any of the statutory notices issued to him and the opportunities are granted to come forth with the explanations for which the case is remanded back by the Tribunal. On assessee’s non-compliant behavior Ld. AO’s order is loud and vocal, wherein the observations recorded are extracted hereunder:

9. From the facts narrated by the AO it becomes clear that during the original assessment proceedings also the assessee has failed to make compliances to the notices issued and furnish satisfactory documentary evidence in support of the claims made. The AO has categorically stated that he had followed the principles of natural justice in allowing the assessee several opportunities for furnishing relevant material on which he wish to rely upon. Also, the AO has verified the documentary evidences pertaining to the advances given to Geekay Visage Infrastructure Pvt. Ltd., Raipur and Sanjay Bajpai Builders wherein fatal discrepancies were noticed by his and which rendered the evidences unreliable and unacceptable.

10. This also reflects a lackadaisical approach and disrespect towards the department. Since the assessee has not responded to the statutory notices issued to the assessee, the undersigned is left with no option but to reject the books of account as books of account are not available for verification. Bills and vouchers are primary evidence of turnover shown in P &L account which helps in determining the profit has not been submitted by the assessee. In the absence of such a crucial base and taking into account the gross non-corporation by the assessee. The real profit could not be verified hence the net profit determined at 8% and assessed.

11. Thus, it gives a clear impression that books weren’t maintained regularly and all this story during the original assessment proceedings had been cooked up to prevent the verification of books, bills and vouchers. What if a survey would have been conducted in the office and shop premises of the assessee? In the absence of books, the conclusion would have been the same. It would have called for definite rejection of books of accounts & re-estimation of profits.

12. During the course of fresh assessment proceedings various notices, as mentioned above, were issued to the assessee for the above questionnaires. In response to the above notices, the assessee has not submitted any reply/documents till date. In this regard, a show cause notice dated 13.09.2021 along with a Draft Assessment Order was issued to the assessee asking the assessee to explain the above-mentioned issue. In response to which the assessee has not furnished any reply. In the light of the above facts and circumstances the books of account of the assessee are rejected and income is estimated at 8% of the cost of the sale by invoking the provisions of sec. 145(3) of the Act. The net profit shown by the assessee @ 0.91 % is worked out @ 8%. Thus, the difference of Rs. 1,33,97,283/- is added back to the assessee’s income. Therefore, due to the absence of any documents, the additions made by the AO at Rs. 1,33,97,283/- was also assessed in the assessment of fresh assessment. The Penalty proceedings u/s 271(1)(c) are being initiated for furnishing inaccurate particulars of income.

8. The assessment thereafter was culminated determining the total assessed income at Rs.1,50,84,533/-.

9. Assessee, again aggrieved with the order of Ld. AO, have preferred an appeal before the Ld. CIT(A), but as usual did not turn up with any submissions, explanations or response before the Ld. CIT(A), under such circumstances, Ld. CIT(A) after discussing the merit of case have dismissed the appeal, approved the observations and confirmed the addition made by the Ld. AO. Consequently, the appeal of the assessee before the First Appellate Authority in second round of the proceedings was also dismissed on account of non-prosecution. The observations of the Ld. CIT(A) while dismissing the appeal of the assessee are as under:

5.3 DECISION: – The Statement of Facts, Grounds of appeal and the material on record have been considered.

During the appellate proceedings, the appellant has not filed any written submission. In absence of the written submission and evidence, it remained to be unexplained as to how the AO’s order is erroneous. It is to be noted here that the appellant did not file any submissions required in the original appellate proceedings. The matter was set aside by the Hon’ble ITAT to the file of the A.O. The appellant before the Hon’ble ITAT submitted that he would make compliance and pleaded for one more opportunity which was granted by the Tribunal. However, he had failed to honour that commitment. The A.O. issued multiple notices for compliance but the appellant did not respond. During the appellate proceedings, the appellant only filed grounds of appeal which was general in nature without specifying what the A.O. has violated while rejecting books of accounts. The appellant also contended that determination of profit @ 8% is excessive. However, the appellant did not file any comparable and why 8% is to be considered as excessive. Therefore, this contention is also rejected. The appellant claimed of not getting proper opportunities. It is noticed the appellant was provided as many as five opportunities and during the appellate proceedings, three opportunities were given, as against the appellant request of granting one more opportunity before the Hon’ble ITAT. Therefore, this contention of the appellant is not correct and accordingly rejected.

Further, if the appellant claims that he is eligible for any claim he should have furnished supporting documents. The appellate proceedings are first line of remedy to those who think that the injustice has been done by the AO. However, the appellant failed to avail the same by non-complying. From the assessment order, it is evident that there was non-compliance of notices before the AO as well and therefore, the AO had to pass the order. During the appellate proceedings also, the appellant has not availed of the opportunities given. Therefore, it is assumed that the appellant is not interested in pursuing his own appeal. Moreover, the appellant failed to bring on records any facts or documents which can explain how the order of the AO is erroneous.

5.4 In the case of Anil Goel vs CIT, [2008] 306 ITR 212 (Punjab & Haryana), the Hon’ble High Court held as under:

“4. It is thus obvious on the plain language of section 250 of the Act that date and place of hearing was duly fixed. The assessee was also given notice along with notice to the Assessing Officer. The assessee had ample opportunity to make his submissions by appearing in person or through authorized representative. Despite fixing the case for seventeen hearings, no one had put in appearance nor any justifiable reason for adjournment was given.

5. The Tribunal also found that non-recording of reasons in support of order passed by CIT(A) would not amount to committing any illegality because the CIT(A) has adopted the reasoning advanced by the Assessing Officer and has upheld his order. The judgment of this Court, in the case of Popular Engineering Co. v. ITAT [2001] 248 ITR 577, has been rightly relied upon wherein it has been observed that elaborate reasons need not be recorded by the CIT(A) as has been done by the Assessing Officer. The reasons are required to be clear and explicit indicating that the authority has considered the issue in controversy. If the appellate/revisional/ authority has to affirm such an order it is not required to give separate reasons which may be required in case the order is to be reversed by the appellate/revisional authority.”

5.5 Accordingly, I agree with the reasons given by the AO and confirm the addition made by the AO. Ground Nos. 1 to 7 are hereby dismissed.

6. GROUND NO. 8: – In this ground the appellant has requested to allow adding or amending any ground of appeal. No such option was exercised by the appellant and, as such, this ground is treated as dismissed.

7. In the result, the appellant’s appeal is dismissed.

10. The impugned order of Ld. CIT(A) dated 14.02.2024 was not found justifiable by the assessee, therefore, the assessee carried the matter before us in the present appeal.

11. At the very outset, when the case was called for hearing, Ld. Authorized Representative of the assessee, Shri Prafulla Pendse, CA (in short “Ld. AR”), initiated with the prayer that the assessee was not provided with adequate opportunities of being heard either by the Ld. AO or by the Ld. CIT(A). It was the submission that even in this second round of proceedings, the assessee was not served with physical notices or notices on the email of the assessee. During appellate proceedings before the First Appellate Authority notices were served on email id [email protected], whereas in Form No. 35 the assessee had furnished the email id [email protected]. Ld. AR further placed his contentions with the affidavit duly signed by the assessee dated 22.06.2024 that the assessee could not attend the assessment proceedings, as the notices were sent on old email id ([email protected]), which was not in use by the appellant. Before Ld. CIT(A) also the appellant was unable to attend the proceedings as the notices were continuing to be communicated on the old email id ([email protected]), which was not in use by the appellant. It was the argument by Ld. AR that the assessee had categorically specified an email id ([email protected]) for the purpose of correspondence but no communication was made on the said ID. Ld. AR further submitted that even against the column in form no. 35 seeking information, “whether notices / communication may be sent on email ?”, assessee had marked his response as “NO”. It was the submission that the assessee had accessed his old email id i.e., [email protected] after re-setting the password with recharging and reactivation of his connected mobile numbers, thereby was able to access the old email id on 08.06.2024 only. Ld. AR also furnished before us a copy of inbox of the email id [email protected] stating that the email received from Income Tax Department [email protected] are appearing in dark, shows that such emails are still unread. Ld. AO also placed before us copy of screen short of the Income Tax portal logged into with the id of the assessee showing various notices / letter uploaded by the department from time to time which the assessee had not accessed under the impression that such communication will be received by him either physically or on the email id mentioned in Form 35. It is also argued by the Ld. AR that the assessment order was passed within a fortnights time from 31.08.2021 to 20.09.2021, similarly, the appellate order by the Ld. CIT(A) was passed within a very short period of time wherein notices were issued on 06.11.2023, 04.01.2024 and 02.02.2024 and final order was passed on 14.02.2024. Backed by aforesaid submissions Ld. AR placed his contention that the assessee appellant was prevented by sufficient cause from filing written submissions / replies before the authorities below, therefore, in all fairness and for the sake of principle of natural justice, it was the prayer that the matter should be restored back to the file of Ld. CIT(A), so that the appellant can furnish necessary submissions / replies to assist the adjudication of the issues in present appeal on merits.

12. Ld. Sr. DR, Shri Satya Prakash Sharma, on behalf of the revenue on the other hand, strongly opposed to the request of the Ld. AR to set aside the matter back to the file of Ld. CIT(A). Ld. Sr. DR submitted that both the revenue authorities have afforded ample opportunities of being heard to the assessee. The assessee was found to be persistent non-compliant before the revenue authorities. The assessee always adopted lackadaisical approach and have shown disrespect towards the department and authorities. Ld. Sr. DR further submitted that it is the second round of proceedings, whereas the assessee when he was failed to put up his presence or submissions before the First Appellate Authority in the first round of litigation and had end-up with an exparte order, which was assailed by him before the ITAT, wherein the assessee was again provided with the opportunity to represent his case before the Ld. AO, however, even after the categorical directions of the tribunal and admission by the Ld. Counsel of the assessee making a statement at the bar that the assessee would make proper representation, if one more opportunity of being heard is granted to him, the assessee remain negligent as usual towards the proceedings. In such a situation, it was the submission that the assessee had explicitly failed in discharging the onus and duties entrusted upon him, therefore, the assessee should not be provided with another opportunity to prolong the litigation. Ld. Sr. DR further submitted that in the present case as the proceedings are endlessly continuing since last more than 08 years, which are in started with the first assessment in March, 2016 and are still in process till July, 2024, therefore, such a disobedient assessee, having no reverence towards the prescribed procedures laid down by the legislature and to follow the mandatory timelines, should not be allowed with further opportunities to prolong the litigations for which no assistance could be provided in the preceding 08 years of time. With such submissions, it was the request of Ld. Sr. DR that the order of Ld. CIT(A) wherein merits of the issue are duly dealt with based on material available on records, deserves to be upheld.

13. We have considered the rival submissions, and perused the material available on record. Considering the events occurred in the proceedings, which led the present case brought before us to adjudicate the same. The list of events, their dates and the outcome with the reason for such decisions, are as under:

14. In view of aforesaid admitted facts of the case, wherein the proceedings have been prolonged for almost more than 08 years, on account of assessee’s non-attentive behaviour towards the tax proceedings, which were noted by both the revenue authorities in their orders in first round of litigation as well as in the second round. However, the assessee remains negligent under his own volitions and for that reason the revenue authorities are compelled to pass appropriate orders. On this aspect, Ld. CIT(A) in his order dated 14.02.2024 have dedicated certain paragraphs which reads as under:

4. NON-ATTENDANCE: – In this case, it is seen that the appeal was filed on 18/10/2021 and the first notice of hearing was issued on 06/11/2023, fixing the date of hearing on or before 21/11/2023, but on the appointed date, furnished submission. Also, several opportunities of hearing were given to the appellant as narrated below: –

As can be seen from the above table the appellant was given ample opportunities by way of notices issued as narrated above. However, the appellant has refrained from attending the appellate proceedings and has not furnished any submission.

4.1. There is a well-known dictum of law “VIGILANTIBUS, NO DORMENTIBUS, JURA SUBVENIUNT” which means law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim one’s right, he/she must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Law confers rights on persons who are vigilant of their rights.

4.2. Hon’ble Madhya Pradesh High Court in the case of Estate of Late TukojiraoHoIkar vs. CWT (223 ITR 480) has held as under:

“if the party, 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, the court is not bound to answer the reference.

4.3. Similarly, Hon’ble Punjab & Haryana High Court in the case of New Diwan Oil Mills vs. CIT (2008) 296 ITR 495) returned the reference unanswered, since the appellant remained absent and there was no assistance from the appellant.

Hon’ble Supreme Court in the case of CIT vs. B. Bhattachargee & Another (118 ITR 461 at page 477-478) held that the appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same.

4.4. In the given circumstances the appeal is decided on merit on the basis of documents that have been submitted by the appellant as part of the appeal memo. i.e. grounds of appeal, statement of facts, assessment order etc.

15. It is an undisputed fact that notices / communications by the Ld. AO as well as Ld. CIT(A) were dropped in the ITBA portal, which are downloaded and copies of the same are furnished before us by the assessee in his paper book. Ld. AR’s plea that the notices were not served on the assessee on an email which was mentioned in the Form 35, whereas the notices were served on assessee’s old email id, which he was not using. It is pertinent to mention that as per assessee’s affidavit the email id which was not in used was accessed by him on 08.06.2014 only, whereas the order by Ld. CIT(A) was passed on 14.02.2024 and the appeal against the same before the Tribunal has been filed on 12.04.2024. This shows that the assessee was accessing the communications of the department on ITBA portal, thereby he acquired the knowledge about passing of the order and thus, the appeal before the tribunal was duly filed within the stipulated time. Even the appeal before the first appellate authority (in second round) was filed within time. Ostensibly, considering the approach of the assessee, emanating from the aforesaid admitted facts, the contention of the revenue can be accepted that the assessee was careless throughout all the tax proceedings, has always disrespected the obligations cast upon him. We may herein also observe that the case in first round of litigation was relegated back to the file of Ld. AO by the Tribunal on the request of the assessee to grant one more opportunity of being heard, with the admission that he will make proper representation. The assessee remains irresponsible at every stage by not responding to before the revenue authorities. Though, it is surprising to note that all the remedial actions in filing of appeals are complied by the assessee in a timely manner. It shows that the assessee was in receipt of communications from the department through ITBA portal and therefore, was able to take such recourse within the stipulated time frame. The assessee in present case, who had been granted with another opportunity to represent the matter before the Ld. AO by the Tribunal on 16.05.2019, the assessee was well aware that the Ld. AO will conduct consequential assessment proceedings, but he chooses not to respond before him. Again before Ld. CIT(A) while challenging the order of Ld. AO, which was a best judgment assessment u/s 144, having an essay on the lackadaisical conduct of the assessee, he did not take it seriously and remains dereliction of his duties, thus, got the dismissal of appeal. On a thoughtful consideration of the aforesaid facts, we are unable to comprehend and to subscribe with the contentions raised by the Ld. AR of the assessee that there was violation of principle of natural justice by both the revenue authorities and the assessee should be provided with another opportunity of being heard. Herein, we may concur with the observations of the Ld. CIT(A) regarding assessee’s negligent behavior that There is a well-known dictum of law “VIGILANTIBUS, NO DORMENTIBUS, JURA SUBVENIUNT” which means law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim one’s right, he/she must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Law confers rights on persons who are vigilant of their rights.

16. In view of aforesaid facts, circumstances and observations, we are of the considered opinion that the request of the assessee to restore the matter back to the file of Ld. CIT(A) cannot be acceded to, especially in a case wherein the assessee has chosen not to represent its matter for more than 08 years, even after the opportunity by the tribunal, the assessee remain non-attentive, thus, have not furnished required information and explanation before the lower authorities when adequate opportunities have been afforded. Assessee’s plea that the notices were not received by him on correct email id cannot be of any help as the assessee was vigilant enough in filing the appeals on time which establishes that the assessee had adopted an evasive approach towards the compliances to be made but have always taken the remedial recourses to his benefits. In totality the contentions of the assessee which are not found to be convincing in terms of facts and circumstances of the present case, therefore, we reject such an untenable prayer of the Ld. AR.

17. A similar view has been taken by the coordinate bench of ITAT, Raipur in the case of M/s. Adim Jati Seva Sahkari Samiti Maryadit in ITA No. 50/RPR/2023 vide order dated 18.09.2023 wherein, the relevant observations of the Tribunal are as under:

12. Now, when the assessee society, as per its volition, had not filed any return of income for the year under consideration A.Y 2017-18, i.e., either u/s 139 or in compliance to notice u/s 148 of the Act; or appeared before the A.O during the assessment proceedings or placed on his record any written submission or filed replies to the queries that were raised vide notice(s) issued u/s.142(1) of the Act; nor despite sufficient opportunities participated in the proceedings before the CIT(Appeals), then, in the absence of any evidence whatsoever, whether documentary or otherwise, which would reveal that there was no justification for treating the cash deposits of Rs. 2,47,65,369/- (supra) in the assessee’s bank account as its unexplained money u/s.69A of the Act, we are of a firm conviction that no infirmity emerges from the order of the CIT(Appeals) who had rightly approved the order passed by the A.O u/s 144 of the Act, dated 11.12.2019.

13. Although Section 253 of the Act, inter alia, vests with an assessee a statutory right to assail before the Income-Tax Appellate Tribunal an order passed by the Commissioner (Appeals), but a careful perusal of the aforesaid statutory provision reveals that the same can be triggered only where the assessee appellant is, inter alia, aggrieved with “…. any order of assessment”. For the sake of clarity, Sec. 253 (relevant extract) is culled out as under:

“253 (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order:

(a). an order passed by a Deputy Commissioner (Appeals) [before the 1st day of October, 1998] [or , as the case may be, a Commissioner (Appeals)] under [section 154], section 250, [section 270A,] [section 271, section 271A[section 271J] or section 272A]’ or

(b) To (f).) ………………………. ”

(emphasis supplied by us)

Thus, considering the scope of Sec. 253 of the Act, it transpires that the same lays down as a pre-condition a grievance of the assessee appellant arising from the order passed by the Commissioner (Appeals).

15. Apropos, the claim of the Ld. A.R. that the matter in all fairness be restored to the file of the A.O. for fresh adjudication, the same does not favor us. As observed by us herein above, the grounds based on which the order of the CIT(Appeals) has been assailed before us are devoid and bereft of any merit; therefore, the appeal is liable to be dismissed on the said count itself. Apart from that, we are of a firm conviction that the right vested with an appellant to approach the tribunal by preferring an appeal before it is for limited purpose, i.e. a grievance that the assessment framed by the AO, or for that matter, order of the CIT(Appeal) were not according to law. In no case can the Tribunal be taken as a forum for an appellant who, as per his volition, had either adopted an evasive or lackadaisical approach before the lower authorities and not participated in the assessment or appellate proceedings to come up with its case for the first time before the Tribunal and, as a matter of right seek restoring of the impugned order to the file of the lower authorities for fresh adjudication.

18. In view of aforesaid facts, events and observations, no infirmity in the orders of revenue authorities can be imposed on the basis of illogical allegations by the assessee, who is not interested or attentive towards the tax proceedings / litigations, whereas a second round of opportunity was granted to him, thus, dehors any reasonable grievance the contentions raised by the Ld. AR are found to be bereft of merits. We, therefore, finding no error in the impugned order of Ld. CIT(A), uphold the same.

19. In view of aforesaid observations, in absence of any explanation regarding the merits of issue, rejecting the prayer of the assessee to restore the matter to the file of Ld. CIT(A), the appeal of the assessee in ITA No. 152/RPR/2024 stands dismissed.

Order pronounced in the open court on 16/08/2024.