TMI Blog2023 (2) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... by him in his bank account in SBN during the year, therefore, no infirmity arises from his order - Appeal of the assessee is dismissed. - SHRI RAVISH SOOD, JUDICIAL MEMBER For the Assessee : None For the Revenue : Shri Satya Prakash Sharma, Sr. DR ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 21.09.2023, which in turn arises from the order passed by the A.O under Sec.143(3) of the Income-tax Act, 1961 (in short the Act ) dated 23.12.2019 for the assessment year 2017-18. The assessee has assailed the impugned order on the following grounds of appeal: 1. That the NFAC has grossly erred in facts and circumstances of the case to confirm the income at Rs.16,94,650/- against the returned income at Rs.3,41,650/-. 2. That the confirmation of addition for cash deposit during demonetization period at Rs.13,553,000/- considered as unexplained and added u/s.69A is unjustified. 3. That the addition of Rs.13,53,000/- added u/s. 69A of the IT Act, 1961 is arbitrary and bad in law. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny reply in support of appeal. This shows that appellant is not interested in prosecuting the appeal or has nothing to say in support of appeal. Judgment on the issue of apathy of appellant to prosecute appeal and issue of non-compliance by appellant at appellate stage has been considered and decided in various cases by the Hon'ble Supreme Court and Various High Courts. Some of landmark decisions on this issue is as under: 6.3 The decision of the Hon'ble High Court of Mumbai in the case of M/s Chemipol v/s. Union of India [Central Excise Appeal No.62 of 2009] clearly states that every court, judicial body or authority, which has a duty to decide a matter between two parties, inherently possesses the power to dismiss the case in default. For the sake of reference, the relevant extract of the judicial pronouncement rendered by the Hon'ble High Court of Mumbai quoting decision of Hon'ble Supreme Court in case of Nandramdas Dwarkadas, AIR 1958 MP 260, is reproduced below: Now the Act does not give any power of dismissal. But it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee should not be given many opportunities just because that quantum of amount involved is high. The necessary course of action is to draw adverse inference, otherwise it would amount to give premium to the assessee for his negligence. When the assessee is non-cooperative, it can naturally be safely concluded that the assessee did not want to adduce evidence as it would expose falsity and non-genuineness. 6.9 In view of the facts and legal position discussed above, it is seen that appellant is not interested in pursuing the appeal and not having any documents, explanation and evidence in support of grounds of appeal raised and thus has not discharged onus to prove the genuineness of the fact raised in grounds of appeal. It is seen that the appellant has filed Statement of facts/Grounds of appeal along with Form 35, but no written submission has been filed till date. In view of the lack of prosecution by the appellant, appeal of appellant should be dismissed in limine without considering appeal on merit. However, to provide natural justice to appellant, I proceed to decide the appeal based on facts and material available on records. 7. Even on merits, a decision base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during appellate proceedings in support of such claim. Once the onus is on appellant, the same has to be discharged by way of contemporary documents and evidence in which it has miserably failed. Section 69A of the Income Tax Act, 1961 stated that: Where in any financial year the assessee is found to be the owner of any money, bullion, jewelry, or other valuable article and such money, bullion, jewellery, or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery, or valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery, or other valuable article may be deemed to be the income of the assessee for such financial year. So, the conditions under Section 69A are as follows: The assessee (taxpayer) is found to be the owner of money, bullion, jewelry, or other valuable articles. These assets are not recorded in the books of account maintained by the assessee for any source of income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrist- watches is the income of the assessee. In this connection, reference may be made to the views expressed by Justice Tulzapurkar, as his Lordship then was, of the Bombay High Court in the case of J.S. Parkar v. V.B. Palekar [1974] 94 1TR 616 , where on difference of opinion between Justice Deshpande and Justice Mukhi, Justice Tulzapurkar agreed with Justice Deshpande and held the question whether on the evidence established, the petitioner was the owner of the gold seized, though there was no direct evidence placed before the taxing authorities to prove that the petitioner had actually invested moneys for purchasing the gold in question, the inference of the ownership of the gold in the petitioner in that case rested upon circumstantial evidence. There also gold was seized from a motor launch belonging to the petitioner in that case. There a contention was raised that the provision in section 110 where a person was found in possession of anything, the onus of proving that he was not the owner was on the person who affirmed that he was not the owner, was incorrect and inapplicable to taxation proceedings. This contention was rejected. The Bombay High Court held that what was me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year. So far as the first question is concerned, the High Court answered accordingly and, in our opinion, rightly.' Hon'ble Supreme court approved that the Hon'ble HO rightly held that the expression 'income' as used in section 69A, has wide meaning which meant anything which came in or resulted in gain. Similarly in the case of CIT vs KTMS Mohamood Hon'ble HC of Madras in 92 Taxman 169 held that as per the provisions of section 110 of the Evidence Act, the onus is on the person, who is in possession of the money to show that he is not the owner of the same. Therefore, the burden was not on the department to prove that the assessee was the owner of the amount found in the possession of the assessee and the addition made to income was confirmed. It may be noted that onus is on assessee to prove positively the source and nature of an amount received by him in accounting year, and if he fails to discharge that onus, income-tax authorities are entitled to draw an inference that amount received was of an income nature. Where assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empted entity which could receive SBN. It is seen that SBN currency was received during demonetization period and it was incumbent upon it to prove as to from whom it had received the SBNs. In this connection, decision rendered by the Hon'ble Cuttack ITAT in the case of Pankaj Gupta vs ITO dated 16/05/2023 ITA 66/CTK/2023 AY 2017- 18 is reproduced below for a ready reference- ₹ 4. I have considered the submission of the Id. Sr. DR and the written submissions filed by the assessee. It is an admitted fact that the assessee's cash balance as on 08.11.2016 is only Rs.252.40. It is also an accepted fact that as on the date of demonetisation except for specified persons no other persons were permitted to transact in the demonetized currency. The assessee does not fall within the exempted category of persons to deal with the demonetized currency. With this in mind, if it is seen, the sale alleged to have been made by the assessee between 08.11.2016 and 12.11.2016 though shows availability of funds along with recovery from the debtors, still it cannot be said that this is a source for the specified bank notes being the demonetised currency which has been deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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