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TMI Blog2024 (7) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 51) has wrongly been treated as profits and gains of business chargeable under section 44AD. 3. In the facts and circumstances of the case the addition of Rs. 4,79,694/- made under section 44AD is contrary to provisions of Law. 4. That the Hon'ble Courl may deem fit be granted to the appellant. 6. 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." 2. Succinctly stated, the assessee who is engaged in the business of trading in imitation jewellery under the name and style of M/s. J R Jewellers, had filed his original return of income for A.Y. 2013-14 on 29.03.2014, inter alia, declaring income from his retail business under presumptive scheme contemplated u/s. 44AD of the Act of Rs. 3,87,951/, Page 3-5 of APB. Subsequently, the A.O initiated proceedings u/s. 147 of the Act. Notice u/s. 148 of the Act, dated 06.03.2020 was issued to the assessee. 3. During the course of the assessment proceedings, it was observed by the A.O that the assessee had against his gross receipts of Rs. 46,64,754/- from the business of purchase/sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that he acted in violation of the rules of natural justice." In view of this, it can be said that principles of natural justice have been met when notices we, e issued on several occasions. The laws aid those who are vigilant, not those who sleep upon their rights. This principle is embodied in well know dictum "VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VEN1UNT." 3.3 The Hon'ble Delhi High Court has delivered a decision in the case of CIT Vs Gold Leaf Capital Corporation Ltd. on 02.09.2011 (ITA No. 798 of 2009) holding that a negligent appellant should not be given many opportunities just because the quantum of amount involved is high. Necessary course of action is to draw adverse inference; otherwise it would amount to giving premium to the appellant for its negligence. When the appellant is non-cooperative, it can safely be concluded that the appellant did not want to adduce evidence as it would expose falsity and non-genuineness of its claim. 3.4 In this regard, the decision of the Hon'ble High Court at Mumbai in the case of M/s Chemipol Vs Union of India, Central Excise Appeal No. 62 of 2009 clearly held that every Court, Judicial Body or Authority, which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscellaneous Civil Case No. 304 of 1986- B. R. Phosphate V. CST by this court on November 6, 1995, this court is not bound to answer the reference. In Jamunadas V. CST [1993] 38 MPLJ 462, it is held as under: "For the foregoing reasons, we are of the opinion that 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. We refuse to answer the reference and also saddle the assessee with the costs of the Department quantified at Rs. 150." 3.6 Similarly, their Lordship, in case of CIT vs. B.N. Bhattacharjee & ANR (118 ITR 461) (pages 477,478) had held that, "appeal does not mean merely filing of appeal but effectively pursuing it." 3.7 From the aforementioned discussion, it is clear that no written submissions have been made at appellate level also. Therefore, it is stated that no useful purpose would be served by keeping the appeal pending and therefore the appeal is decided on the basis of documents available on record. There may be various reasons with the appellant to remain unresponsive at the fixed dates. One of the reasons may also be a desi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to tax. Carrying his contention further, it was submitted by the Ld. AR that the A.O had grossly erred in misconceiving the facts and also the settled position of law and had wrongly adopted the "gross profit" element as against the "net profit" while making the impugned addition. It was, thus, averred by the Ld. AR that the addition made by the A.O, which was thereafter sustained by the CIT(Appeals) being based on incorrect reading of law was liable to be struck down. 8. Per contra, the Ld. Departmental Representative (for short 'DR') relied on the orders of the lower authorities. 9. Admittedly, it is a matter of fact borne from the order of the CIT(Appeals) that as the assessee despite having been afforded four opportunities had failed to participate in the proceedings before him, therefore, he was constrained to dismiss the appeal for want of prosecution. Although I find no infirmity in the view taken by the CIT(Appeals) in dismissing the appeal of the assessee who had adopted an evasive and lackadaisical approach in the course of the proceedings before him, but at the same time, am unable to persuade myself to subscribe to the manner in which he had disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der s. 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) are co-terminus with that of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the s. 251(1)(a) and (b) and Explanation to Sec. 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act." 11. I, thus, not being able to persuade myself to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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