TaxTMI 
TaxTMI 
2024 (2) TMI 65
X X X X Extracts X X X X
X X X X Extracts X X X X
....lidated order. 2. I shall first take up the appeal filed by the assessee in ITA No.325/RPR/2023 for assessment year 2014-15 and the order, therein, passed shall mutatis-mutandis apply to the remaining appeals. The assessee society has assailed the impugned order on the following grounds of appeal: "(iv) That the Id CIT(A) has erred in sustaining the disallowance of deduction u/s.80P(2) made by the Id AO at Rs. 23,767/ i.e., the gross profit of PDS business of Rs. 2,58,020/ less proportionate expenses of Profit & Loss Account of Rs. 2,34,253/ hence the net profit from the PDS business comes to Rs 23,767/ and full amount is eligible for deduction u/S80P(2)(GJ(11) for such other business. (v) The Learned AO has only allowed a general deduction of Rs 50,000/ U/S 80P(2)(GJ(11) whereas the entire income of the society is deductible U/S 80P (v) The Id AO has erred in disallowing the deduction u/s80P(2) of other income including dividend income of Rs.7,15,444/ and membership fees/entry fees income of Rs.285/ totaling to Rs. 7,15,729/. The learned AO has only allowed dividend income of Rs.1,53,238/ as exempt and the entire amount of Rs 5,62,206/ which is clearly eligible for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ewa Sahakari Samiti Maryadit, Bhakhara 336/RPR/2023 11- Mar-2022 10-Mar-2022 3-Nov-2023 542 15. Gramin Sewa Sahakari Samiti Maryadit, Bhakhara 337/RPR/2023 11- Mar-2022 10-Mar-2022 3-Nov-2023 542 16. Gramin Sewa Sahakari Samiti Maryadit, Bhakara 338/RPR/2023 11- Mar-2022 10-Mar-2022 3-Nov-2023 542 17. Gramin Sewa Sahakari Samiti Maryadit, Bhakara 339/RPR/2023 11- Mar-2022 10-Mar-2022 3-Nov-2023 542 18. Gramin Sewa Sahakari Samiti Maryadit Doner 340/RPR/2023 3- May-2023 3-May-2023 3-Nov-2023 124 19. Gramin Sewa Sahakari Samiti Maryadit, Doner 341/RPR/2023 3-May-2023 3-May-2023 3-Nov-2023 124 4. Succinctly stated, the assessee society, which is engaged in the business of banking, paddy procurement, sale of fertilizers, seeds and pesticides and controlled items under public distribution system (PDS), had filed its return of income for A.Y.2014-15 on 07.02.2015, declaring an income of Rs. Nil. Subsequently, the case of the assessee society was selected for scrutiny assessment u/s. 143(2) of the Act. 5. Assessment was framed by the A.O vide his order passed u/s. 143(3) dated 12.02.2016, wherein the income of the assessee society was determined a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....TBA, but the appellant has failed to comply with the same. The details of the notices issued are as under : Sr. No. Date of issue of notice u/s.250 Sent by/through Compliance by Appellant 1. 22.02.2021 ITBA No compliance 2. 18.01.2022 ITBA No compliance 3. 07.02.2022 ITBA No compliance 4.2 The issue of non-compliance by assessees at appellate stage has been considered and decided by the Hon'ble Supreme Court and Various High Courts as discussed below: 4.3 The Hon'ble Supreme Court in the decision pronounced on October 25, 2019 in the case of PCIT vs. NRA Iron & Steel Pvt. Ltd in Civil Appeal No. of 2019 (Arising out of SLP (Civil) No. 29855 of 2018) has held that if a notice is duly served upon the litigant through its authorized representative, and it was provided sufficient opportunity to appear before the Court and contest the matter but the litigant chooses to let the matter proceed ex-parte, the order cannot be recalled. In the case of the present appellant, the notices to the appellant u/s 250 of the I.T. Act, 1961, have been issued online through the ITBA software, as is required under the Faceless Assessment & Appeals, now in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the present case. The exercise of powers in such a manner and exercise of such appellate powers and passing the non speaking and non reasoned order and the orders which are passed by the Tribunal, which suffers from unreasonableness and arbitrariness and / or at the whims of the Tribunal not backed by any reason can be said to be pure question of law and therefore, interference of this Court is required. 1 It is required to be noted that in the present case right from very begging i.e. assessment proceeding, assessee was non cooperative. Number of opportunities were given by the AO, however assessee did not cooperate and even did not file any reply. Therefore, considering the material on record, the AO made addition as unexplained investment. Even before the learned CIT(A) also the assessee was non cooperative. Number of opportunities were given to the assessee to represent his case, however none remained present on behalf of assessee. Thereafter, the learned CIT(A) proceeded further with the appeal ex-parte and decided the appeal on merits and confirmed the order passed by the AO confirming additions of unexplained investment. Thus, even learned CIT(A) also decided the matter....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a list between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi judicial body. In the absence of the complainant, therefore, the court will be will without its jurisdiction to dismiss the complaint for non prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non appearance of the complainant." 4.7 The Hon'ble Bombay High Court has also laid down the proposition that where the appellant in spite of notice is persistently absent and the Tribunal on facts of the case is of the view that the appellant is not interested in prosecuting the appeal, it can in exercise its inherent power to dismiss the appeal for non-prosecution. In the case of CIT Vs. B. N. Bhattacharya reported at 118 ITR 461, it was held that appeal does not mean merely f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Dhody, Ld. Authorized Representative (for short 'AR') for the assessee society at the threshold of hearing of the appeal submitted that the present appeal involved a delay of 493 days. The Ld. AR has filed an "affidavit" dated 06.11.2023 of the assessee society which had sought for condonation of the delay involved in filing the present appeal. For the sake of clarity, the same is culled out as under: Elaborating on the reasons leading to the aforesaid delay, it was submitted by the Ld. AR that there were multi-facet reasons leading to the same, viz. (i) that as the earlier chartered accountant of the assessee society, viz. Shri Rakesh Khandelwal who was looking after the matter before the CIT(Appeals) had unfortunately expired in the month of April, 2021, therefore, the case of the assessee society had thereafter remained unattended; (ii) that the staff of the assessee society which was working under the Government supervision and Jila Sahakari Bank in a rural areas was not computer literate; (iii) that books of the account of the assessee society was being manually maintained; and (iv) that there was no proper access of internet in the rural area where the assessee society was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in the month of April, 2021, i.e., at the time when the appellate proceedings were going on in the case of the assessee society before the CIT(Appeals). As observed by me hereinabove, the assessee society had not only failed to bring the aforesaid fact to the notice of the CIT(Appeals) and thereafter make necessary arrangements for prosecuting its appeal before him but had adopted a callous and non-cooperative approach in the course of the proceedings before him at all. It is incomprehensible that the assessee society was not conversant about the fact that its appeal has been taken up for hearing by the CIT(Appeals) and was pending before him. I, say so, for the reason that as observed by the CIT(Appeals), the assessee society despite having been validly put to notice on three occasions about the respective dates of hearing of its appeal had chosen not to participate in the same. As the assessee society had neither on any occasion despite validly been intimated about the hearing of the appeal put up an appearance before the CIT(Appeals); nor brought the fact about unfortunate demise of its chartered accountant, viz., Shri Rakesh Khandelwal (supra) in the month of April, 2021 to h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h on the date of death of his earlier counsel was pending before the CIT(Appeals), but was also expected to be vigilant to file the appeal against the impugned order before the Tribunal within the stipulated time period, which, as observed by me hereinabove, he had failed on both counts for no justifiable reasons. As such, the failure of the assessee society to prosecute the appeal before the CIT(Appeals) and thereafter, substantially delaying the filing of the present appeal clearly reveals its lackadaisical approach with respect to its income tax matters. 13. In my considered view, the assessee society had only in order to wriggle out from the inordinate delay of 493 days involved in filing of the present appeal, had tried to justify the same on the ground that the same occasioned for the reason that its earlier counsel had expired and its income-tax matters had remained unattended. The aforesaid explanation of the assessee society does not inspire any confidence for the reason that it ought to have made necessary arrangements for both prosecuting the matter before the first appellate authority and thereafter filing the appeal against the latter's order well within the prescribe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ess, then, the discretion of the court in such cases would normally tilt against the applicant. My aforesaid conviction is supported by the order of "Division Bench" of the ITAT, Mumbai in the case of M/s. Phoenix Mills Ltd. Vs. Asstt. CIT in ITA No.6240/MUM/2007 for A.Y.1999-2000, dated 23.03.2020. Reverting to the facts of the present case, I have already examined the reasons that had led to the inordinate delay, which has not been explained by the assessee society to have occasioned due to bonafide reasons. As observed by me hereinabove, as there was no justifiable reason for the assessee society to file the present appeal after 493 days from the lapse of the prescribed period, therefore, there appears to be no reason to adopt a liberal view and condone the inordinate delay therein involved. Also, I may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act. 16. I may herein obse....