Anil Goel vs Commissioner of Income Tax (Appeals) and Another

M.M. Kumar, J.—This order shall dispose of I.T.A. Nos. 39 and 40 of 2005 as common questions of law and facts are involved. However, the facts are being referred from I.T.A. No. 39 of 2005.

The assessee-appellant has filed the instant appeal u/s 260A of the Income Tax Act, 1961 (for brevity "the Act") against the order dated August 20, 2004, passed by the Income Tax Appellate Tribunal, Chandigarh Bench "B" in I.T.A. No. 695(Chd.) of 2004 in respect of the assessment year 1993-94, claiming that the following substantial questions of law would arise for our determination:

(i) Whether, on the facts and circumstances of the present case, the action of the authorities below in denying the opportunity to the appellant/assessee to put forth his part of the case, is legally sustainable in the eyes of law?

(ii) Whether, on the facts and circumstances of the present case, the action of the authorities below in deciding the case of the assessee without going into the merits of the case, is legally sustainable in the eyes of law?

(iii) Whether the action of the assessing authorities in exercising their jurisdiction by acting merely on presumption is sustainable in law?

On August 13, 1993, the assessee-appellant had filed his return for the assessment year 1993-94, declaring his income of Rs. 45,620, which was processed u/s 143(1)(a) of the Act on September 24, 1993. A search and seizure operation u/s 132(1) was conducted at his residential as well as business premises of M/s. Goel Oil and General Mill at different places. On the basis of the seized material notice u/s 148 of the Act was issued as from the seized record it transpired that the assessee had made substantial investment in the purchases of shares and other movable assets. The Assessing Officer after completing the assessment, vide order dated March 9, 1998, assessed the total income of the assessee at Rs. 2,60,620, inter alia, including NRE gift dated September 22, 1992, from Shri Krishan Gupta of Rs. 50,000, NRE gift dated January 2, 1993, from Smt. Seema Gupta of Rs. 1,25,000 and addition of account of low household withdrawal at Rs. 40,000. Assailing the order of the assessing authority, the assessee-appellant filed an appeal before the Commissioner of Income Tax (Appeals), Ludhiana. The Commissioner of Income Tax (Appeals) dismissed the appeal vide order dated March 18, 2004/March 30, 2004, and upheld the order of the assessing authority, observing that the case was fixed for 17 times on various dates but neither any written request nor any reply on behalf of the assessee-appellant was filed. Thus, the Commissioner of Income Tax (Appeals) concluded that the assessee-appellant was not interested in pursuing the appeal. In this regard, the Commissioner of Income Tax (Appeals) followed the principle as embodied in the well-known dictum vigilantibus, non dormientibus, jura subbeniunt. Further appeal of the assessee-appellant filed before the Tribunal was also dismissed vide order dated August 20, 2004. The view of the Tribunal is discernible from paragraphs 2.4 to 2.6 of the judgment, which are as under:

2.4 As per Section 250 of the Act, the Commissioner of Income Tax (Appeals) shall fix the date and place of hearing and shall give notice of the same to the assessee and to the Assessing Officer against whose order the appeal is preferred. The assessee either in person or by an authorized representative, has a right to be heard at the hearing of the appeal.

2.5 In the instant case, both these conditions have been complied with by the first appellate authority because in this case, the appeal was fixed for hearing 17 times and even on the last four dates of hearing, none put in appearance on behalf of the assessee nor any written request or reply was filed on behalf of the assessee, which means that proper opportunity of being heard has been allowed to the assessee and in case the assessee does not put in appearance before the first appellate authority nor moves an application giving justifiable reasons for adjournment, none else is to be blamed except the assessee.

2.6 From the record, it appears that the assessee has not filed any written request for adjournment before the Commissioner of Income Tax (Appeals) on the last four dates of hearing, as mentioned in the order of the Commissioner of Income Tax (Appeals). Even before us, the assessee has not produced any evidence to show that at any point of time, on the last four dates of hearing, as indicated in the order of the Commissioner of Income Tax (Appeals), the assessee has ever filed any application for adjournment before the Commissioner of Income Tax (Appeals).

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 an authorised representative. Despite fixing the case for seventeen hearings, no one had put in appearance nor any justifiable reason for adjournment was given.

The Tribunal also found that non-recording of reasons in support of the order passed by the Commissioner of Income Tax (Appeals) would not amount to committing any illegality because the Commissioner of Income Tax (Appeals) 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. Vs. Income Tax Appellate Tribunal and Another, , has been rightly relied upon wherein it has been observed that elaborate reasons need not be recorded by the Commissioner of Income Tax (Appeals) 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.

In view of the above, we are of the considered view that no illegality has been committed by the Tribunal by upholding the view taken by the Commissioner of Income Tax (Appeals). No substantive question of law within the meaning of Section 260A(1) of the Act as claimed by the assessee-appellant would arise for our determination warranting admission of the appeal.

The appeal is wholly misconceived and the same is dismissed.