Esar Builders, Panaji vs Assessee
- CitationITA NO. 61/PNJ/2014 : (A.Y - 2008-2009)
Ratio decidendi
The rule this decision rests on
Where an assessee's appeal is not prosecuted despite adjournments and notice of the hearing, the Tribunal may treat the appeal as not admitted and dismiss it for default under the Tribunal's rules, the assessee having shown that it is not willing to prosecute the appeal. Where the Revenue's appeal turns on the sequence of an unexplained cash investment and an unexplained receipt of income, and the Department cannot establish the dates on which those transactions occurred, the Tribunal will not decide the question of telescoping on that record; it sets aside the appellate order and restores the issue to the Assessing Officer to determine whether the investment preceded the receipt, with telescoping permitted only if the receipt was earlier than the investment and the addition on the receipt is sustained.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ITA NOS. 31 & 32/PNJ/2014 : (A.Ys - 2008-2009 & 2009-10)
M/s. Esar Builders Vs. Dy. Commissioner of Income Tax Dempo Trade Centre, Terra Firma, Central Circle, Panaji, Goa Unit No. 201A/201B, 2nd floor, (Respondent) Patto, Panaji, Goa (Appellant) PAN : AAAFE4559J
ITA NO. 61/PNJ/2014 : (A.Y - 2008-2009)
Dy. Commissioner of Income Tax Vs. M/s. Esar Builders Central Circle, Panaji, Goa Dempo Trade Centre, Terra Firma, (Appellant) Unit No. 201A/201B, 2nd floor, Patto, Panaji, Goa (Respondent) PAN : AAAFE4559J
Assessee by : None Revenue by : R. Durai Pandian, Ld. DR
Date of Hearing : 20/01/2015 Date of Order : 20/01/2015
ORDER
PER P.K. BANSAL :
1. The above cross appeals have been filed for A.Y 2008-09 against the order of CIT(A)-VI, Bangalore dt. 20.11.2013 while the Assessee has filed appeal for A.Y 2009-10 against the order of CIT(A) -VI, Bangalore dt. 20.11.2013.
2 ITA NOS. 31&32/PNJ/2014 (A.Y : 2008-09 & 2009-10) & ITA NO. 61/PNJ/2014 (A.Y : 2008-09)
2. So far as the Assessee's appeals are concerned, none appeared on behalf of the Assessee though the appeals were adjourned on 8.4.2014, 23.6.2014 and 22.9.2014 on the request of the Assessee. Notice was also served on the Assessee by registered post about the hearing on 20.1.2015.
3. The laws assist those who are vigilant and not those who sleep over their rights. This principle is embodied in the well-known dictum 'VIGILANTBUS NON DORMENTIBUS, JURA SUBVENIUNT'. Considering the facts and keeping in mind the provisions of rule 19(2) of the Income Tax (Appellate Tribunal) Rules, as were considered in 38 ITD 320 (Del) in the case of CIT V. Multiplan India Ltd. as also in 223 ITR 480 (M.P) in the case of Estate of late Tukojirao Holkar V. CWT, we treat the appeals filed by the Assessee as not admitted.
4. Therefore, following the decision of 38 ITD 320 read with Rule 24 & 25 with 19 of the ITA Rules, we dismiss the appeals filed by the Assessee for default since we find that the Assessee is not willing to prosecute the appeals. Our view gets support from the judgement of 255 ITR 467 (AP) and 265 ITR
252. In the result, both the appeals filed by the Assessee are dismissed in limine.
5. In its appeal, the Revenue has taken the following grounds of appeal :
"1. Whether on the facts and circumstances of the case the Ld CIT(A) did not err in telescoping the unexplained investment of Rs.37 lakhs invested in Taleigao Property on 20.08.2007 with the undisclosed income of Rs.75.90 lakhs received by the assessee on 17/01/2008 from M/s Models Real Estate Developers?
2. Whether on the facts and circumstances of the case the Ld CIT(A) did not err in not appreciating the undisclosed income received from M/s Model Real Estate Developers was at a later date and therefore not available with the assessee to make the investment of Rs.37 lakhs in Taleigao Property?"
3 ITA NOS. 31&32/PNJ/2014 (A.Y : 2008-09 & 2009-10) & ITA NO. 61/PNJ/2014 (A.Y : 2008-09)
6. Since nobody appeared on behalf of the Assessee, we therefore decided to dispose off the appeal filed by the Revenue after hearing the ld. DR. The only issue involved in the appeal filed by the Revenue relates to deletion of the addition of Rs. 37 lacs by telescoping against the undisclosed income of Rs.75.90 lacs sustained by the CIT(A).
7. After hearing the ld. DR we noted that the AO noted that the Assessee has received a sum of Rs.90 lacs from M/s. Model Real Estate Developers towards liabilities of the project while the liabilities were to the extent of Rs.14,10,000/- as recorded in the books of accounts. Therefore, a sum of Rs.75,90,000/- received by the Assessee in excess of the liabilities (Rs.90,00,000 - Rs.14,10,000) was added by the AO and sustained by the CIT(A). The AO further noted that the Assessee received cash payment from Sadiq Shaikh as per pages 14-21 of Annexure A/EB/4 dt. 25.2.2010 in respect of property of 26,816 sq. mtrs., Survey no. 212/1 at Taleigao. The details of the receipts are as under :
Page Amount Mode of Name of the Recipient no. paid by you Payment (in Rs.) 14 8,00,000/- Ch. 104348 Mrs. Vasanti Mahadev Shirvoikar 12.09.2007 and Others 15 1,00,000/- Ch. 104354 Mrs. Vasanti Mahadev Shirvoikar 12.09.2007 and Others 16 1,00,000/- Ch. 104349 Mrs. Vasanti Mahadev Shirvoikar 12.09.2007 and Others 17 6,00,000/- Ch. 104350 Mr. Chandru Shirvoikar and Others 12.09.2007 18 1,00,000/- Ch. 104351 Mr. Chandru Shirvoikar and Others 12,09.2007 19 1,00,000/- Ch. 104355 Mr. Chandru Shirvoikar and Others 12.09 .2007 20 10,00,000/- Cash Mrs. Vasanti Mahadev Shirvoikar and Others 21 27,00,000/- Cash Mrs. Vasanti Mahadev Shirvoikar and Others 4 ITA NOS. 31&32/PNJ/2014 (A.Y : 2008-09 & 2009-10) & ITA NO. 61/PNJ/2014 (A.Y : 2008-09)
Total receipts were of Rs. 45 lacs out of which Rs. 37 lacs were in cash. The AO on the basis of the receipts found and signed by the vendor made addition of Rs. 37 lacs. The total amount of cash payment relates to the sale deed executed on 20.8.2007, therefore, that was taken to be the date of payment and the consideration was increased by Rs. 37 lacs. The AO made the addition for the said amount as unexplained investment. When the matter went before CIT(A), CIT(A) confirmed the addition on merit as there was no source available in respect of the said amount paid outside the books of accounts but allowed telescoping of the said amount against the addition of Rs.75,90,000/-. We noted from the submissions of the ld. DR that the investment in the Taleigao property in cash was made on 20.8.2007 while the sum of Rs.75,90,000/- which was treated as income of the Assessee relates to receipt from M/s. Models Real Estate Developer on 17.1.2008. However, the ld. DR could not submit any cogent evidence or material so that these dates could be confirmed. We, therefore, in the interest of justice and fair play to both the parties, set aside the order of CIT(A) and restore this issue to the file of the AO with the direction that the AO shall re-decide this issue and verify when the investment was made by the Assessee so far it relates to Rs. 37 lacs and when the amount has been received by the Assessee so far as it relates to addition of Rs.75,90,000/-. If the unexplained investment of Rs. 37 lacs were made prior to the unexplained receipt, the Assessee, in our opinion, will not be entitled for telescoping. In case the AO finds that the undisclosed income of Rs.75,90,000/- was received prior to the unexplained investment of Rs. 37 lacs and in case the addition of Rs.75,90,000/- stands sustained, the Assessee will be entitled for telescoping. Thus, the ground taken by the Revenue stands allowed for statistical purpose.
5 ITA NOS. 31&32/PNJ/2014 (A.Y : 2008-09 & 2009-10) & ITA NO. 61/PNJ/2014 (A.Y : 2008-09)
8. In the result, both the appeals filed by the Assessee stand dismissed while the appeal filed by the Revenue stands allowed for statistical purpose.
9. Order pronounced in the open court on 20/01/2015.
Sd/- Sd/- (D.T.Garasia) (P.K. Bansal) Judicial Member Accountant Member Place : PANAJI / GOA Dated : 20/01/2015 *SSL* Copy to : (1) Appellant (2) Respondent (3) CIT(A) concerned (4) CIT concerned (5) D.R (6) Guard file True copy, By order,
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