Assadullah Allie, Srinagar V. The Income Tax Officer, Srinagar

ITA 142/ASR/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2333 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 06-03-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 12-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I. T. A. NO. 142/(ASR)/2015 ASSE SSMENT YEAR: 2010-11 ASSADULLAH ALLIE, GREEN AVENUE, SECTOR 1 ST HYDERPORA, SRINAGAR [PAN: ADFPA 8001P] VS. INCOME TAX OFFICER, WARD 3(1), SRINAGAR (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 06.03.2019 DATE OF PRONOUNCEMENT: 07.03.2019 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE ARISING OUT OF TH E ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) JAMMU (CIT(A) FOR SHORT) DATED 24.12.2014, PARTLY ALLOWING THE ASSESSEES APPEAL C ONTESTING HIS ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ('THE AC T' HEREINAFTER) VIDE ORDER DATED 25.03.2013 FOR ASSESSMENT YEAR (AY) 2010-11. 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS CALLED OUT FOR HEARING, AND NEITHER ANY ADJOURNMENT MOTION STANDS MADE. THIS, DESPITE THE FACT OF PROPER SERVICE OF THE NOTICE OF HEARING IN- AS-MUCH AS THE SAME, SENT PER REGISTERED POST, SENT ON 14/2/2019, HAS NOT CAME BA CK UN-SERVED. THERE WAS NO REPRESENTATION EVEN ON THE EARLIER OCCASION, I.E., 06/9/2018, THOUGH THE HEARING, WAS ITA NO. 142/ASR/2015 (AY 2010-11) ASSADULLAH ALLIE V. ITO 2 ADJOURNED IN THE INTEREST OF JUSTICE, SO AS TO COMP LY WITH THE PRINCIPLE OF AUDI ALTERAM PARTEM . SH. P.N. ARORA, ADVOCATE, IN WHOSE FAVOUR VAKALAT NAMA STANDS ISSUED AND WHO HAD, ACCORDINGLY, MADE APPEARANCES I N THIS CASE IN THE PAST, WHO HAPPENED TO BE SITTING IN THE COURT ROOM AT THE TIM E, WAS, ACCORDINGLY INQUIRED WITH IN THE MATTER. HE REITERATED WHAT HE HAD EARLIER ST ATED PER HIS LETTER DATED 19/11/2018 (COPY ON RECORD), I.E., THAT HE BEING UN ABLE TO ESTABLISH CONTACT WITH HIS CLIENT, THE ASSESSEE, NOTICE OF HEARING BE SENT DIR ECTLY THERETO AT THE SRINAGAR ADDRESS. AND WHICH WAS ACCORDINGLY DONE AFTER CONFI RMING THE ADDRESS, WHICH IS THE SAME AS MENTIONED IN FORM 36 (AS WELL AS THE AS SESSMENT AND THE APPELLATE ORDER). IT WAS EXPLAINED TO HIM THAT THE APPEAL IS LIABLE TO BE DISMISSED IN DEFAULT AND, FURTHER, BEING A RECALLED MATTER, NOT LIKELY T O BE RESTORED, SO THAT HE MAY SEEK A SHORT ADJOURNMENT TO PREPARE THE CASE, AND WHICH DA TE SHALL THOUGH BE FINAL. HE WAS REQUIRED TO MAKE A WRITTEN REQUEST IN THIS RESP ECT, ALSO SPECIFYING THE DATE CONVENIENT TO HIM (IN THE MONTH OF MARCH, 2019) BEF ORE RISING OF THE BENCH FOR THE DAY. NO SUCH REQUEST MADE BY HIM EVEN UP TO THE CLO SE OF THE DATE. THE APPEAL WAS ACCORDINGLY TAKEN AS HEARD. 3. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT T HOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE WELL KNOW N DICTUM VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT. THE PRINCIPLE HA S BEEN INVOKED IN MANY A DECISION, AS: ESTATE OF LATE TUKOJI RAO HOLKAR V. CWT [1997] 223 ITR 480 (MP); CIT V. MULTIPLAN INDIA (P.) LTD. [1991] 38 ITD 320 (DEL), DISMISSING THE APPEALS IN LIMINE FOR WANT OF PROSECUTION. REFERENCE HERE MAY ALSO B E DRAWN TO THE DECISION IN CIT V. B.N. BHATTACHARGEE [1979] 118 ITR 461 (SC), WHEREIN IT STANDS CLARIFIED THAT PREFERRING AN APPEAL DOES NOT MEAN MERELY FILING THE APPEAL PAPERS, BUT EFFECTIVELY PURSUING IT. THE APEX COURT HAS PER ITS RECENT LARGER BENCH DECISION IN RAM SIROMANI TRIPATHI & ORS. VS. STATE OF UP (IN CIVIL APPEAL NOS. ITA NO. 142/ASR/2015 (AY 2010-11) ASSADULLAH ALLIE V. ITO 3 9142-9144 OF 2010 & CA NO.6156/2012, DATED 07.2.201 9 (COPY ON RECORD), DISMISSED THE APPEALS IN LIMINE REJECTING THE APPLICATION SEEKING ADJOURNMENT ON THE GROUND THAT THE COUNSEL WAS NOT PRESENT IN THE COURT BUT STATEDLY OUT OF STATION. THE APEX COURT WHILE DISMISSING THE APPEALS MADE IT CLEAR THAT IT WOULD NOT RESTORE THE APPEALS. AS AFORE-STATED, THERE IS NO ADJOURNMENT APPLICATIO N IN THE INSTANT CASE, WITH THE ASSESSEE NOT RESPONDING TO HIS COUNSEL, MUCH LE SS CONTACT HIM AND BRIEF HIM IN THE MATTER. THE LD. CIT(A), THE FIRST APPELLATE AUT HORITY, BEFORE WHOM THERE WAS REPRESENTATION, HAS UPON DUE CONSIDERATION ALLOWED PART RELIEF TO THE ASSESSEE. THE APPEAL IN THE INSTANT CASE IS ALSO TIME BARRED BY 1 3 DAYS. UNDER THE CIRCUMSTANCES, I AM CONSTRAINED TO DISMISS THE ASSESSEES APPEAL IN LIMINE AS UN-ADMITTED AND, IN ANY CASE, FOR WANT OF PROSECUTION. I DECIDE ACCORDI NGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 7, 2019 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATE: 07.03.2019 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: ASSADULLAH ALLIE GREEN AVENU E SECTOR 1 ST HYDERPORA, SRINAGAR (2) THE RESPONDENT: INCOME TAX OFFICER, WARD 3( 1), SRINAGAR (3) THE CIT(APPEALS) JAMMU (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T. TRUE COPY BY ORDER