Sri Kamla Sugar Industries, Shahjahanpur V. ITO-2(2), Shahjahanpur

ITA 331/LKW/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7253 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 10-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, S.M.C. BENCH, LUCKNOW. BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NOS.331 & 332(LUC.)/2010 A.YS. : 2004-05 & 2005-06 SHREE KAMLA SUGAR INDUSTRIES, VS. THE INCOME-TAX OFFICER-II, POWAYAN, SHAHJAHANPUR. SHAHJAHANPUR. PAN AAJFS7496M (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI P.K.BAJAJ, SR.D.R. DATE OF HEARING : 1.9.2011 DATE OF PRONOUNCEMENT : 1.9.2011 O R D E R THESE TWO APPEALS ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 8.12.2009 OF THE LD.CIT(A), BAREILLY. THESE APPEALS WERE EARLIER DISPOSED OF VIDE ORDER DATED 28.5.2010 BY THE I.T.A.T. S.M.C., BENCH, LUCKNOW AND WERE DISMISSED FOR NON-PROSECUTION. LATER ON, THE ASSESSEE MOVED M.A.NOS.38 & 39(LKW)/2010, ALTHOUGH THE ASSESSEE DID NOT APPEAR AT THE TIME OF HEARING OF THE MISCELLANEOUS APPLICATIONS, WHICH WERE FIXED ON 1.7.2011, HOWEVER, BY CONSIDERING THE CONTENTS OF THOSE MISCELLANEOUS APPLICATIONS, THE EARLIER ORDER OF THE TRIBUNAL DATED 28.5.2010 WAS RECALLED VIDE ORDER DATED 1.7.2011 AND THE APPEALS WERE FIXED ON 1.9.2011. HOWEVER, AT THE TIME OF HEARING, NEITHER ANYBODY APPEARED NOR ADJOURNMENT WAS SOUGHT. IT, THEREFORE, APPEARS THAT THE ASSESSEE IS NOT INTERESTED TO PROSECUTE THE CASES. THE LAWS AID THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP UPON 2 THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN WELL KNOWN DICTUM, 'VIGILANTIBUS, ET NON DORMIENTIBUS, JURA SUB VENIUNT'. CONSIDERING THE FACTS AND KEEPING IN VIEW THE PROVISIONS OF RULE 19(2) OF THE APPELLATE TRIBUNAL RULES AS WERE CONSIDERED IN 38 ITD 320 (DEL) IN THE CASE OF CIT VS. MULTIPLAN INDIA LTD., WE TREAT THESE APPEALS AS UNADMITTED. 2. SIMILAR VIEW HAS BEEN TAKEN BY HON'BLE M.P. HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT 223 ITR 480 WHEREIN IT HAS BEEN HELD AS UNDER: 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, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. 3. SIMILARLY HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495 RETURNED THE REFERENCE UNANSWERED SINCE THE ASSESSEE REMAINED ABSENT AND THERE WAS NOT ANY ASSISTANCE FROM THE ASSESSEE. 4. THEIR LORDSHIPS OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. B. N. BHATTACHARGEE AND ANOTHER 118 ITR 461 AT PAGES 477-78 HELD THAT THE APPEAL DOES NOT MEAN, MERE FILING OF THE MEMO OF APPEAL BUT EFFECTIVELY PURSUING THE SAME. 3 5. SO BY RESPECTFULLY FOLLOWING THE VIEW TAKEN IN THE CASES CITED (SUPRA), WE DISMISS BOTH THESE APPEALS FILED BY THE ASSESSEE FOR NON PROSECUTION. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1.9.2011. SD. (N.K.SAINI) ACCOUNTANT MEMBER SEPTEMBER 1ST, 2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5.D.R. A.R.,ITAT, LUCKNOW. SRIVASTAVA.