SH. Suriya Amin, KASHMIR V. The Income Tax Officer, Ward - 3(3), Jammu

ITA 480/ASR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1067 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-03-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 19-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I. T. A. NO. 480/ASR/2017 ASSE SSMENT YEAR: 2011-12 SURYA AMIN, BEHIND CONVENT SCHOOL, RAJ BAGH, SRINAGAR, J & K [PAN: AOLPA 1778E] VS. INCOME TAX OFFICER, WARD-3 (3), SRINAGAR, J &K (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 07.03.2019 DATE OF PRONOUNCEMENT: 14.03.2019 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 30.03.2017, DISMISSING THE ASSESSEES APPEAL CONTES TING HIS ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) FOR ASSESSMENT YEAR (AY) 2011-12 VIDE ORDER DATED 20.03.2014. 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 ON 20/2/2019, HAS NOT CAME BACK UN- SERVED. THERE WAS NO ITA NO. 480/ASR/2017 (AY 2011-12) SURYA AMIN V. ITO 2 REPRESENTATION EVEN ON EARLIER OCCASIONS, I.E., 19/ 12/2017, 05/3/2018, 10/7/2018 AND 26/11/2018. THE APPEAL IS ALSO DEFECTIVE, AND C ONTINUES TO BE SO DESPITE THE DEFECTS BEING COMMUNICATED, AS WELL AS BARRED BY TI ME. THE HEARING FOR THE MENTIONED DATES WAS PER DULY SERVED NOTICES, ADJOUR NED IN THE INTEREST OF JUSTICE, SO AS TO COMPLY WITH THE PRINCIPLE OF AUDI ALTERAM PARTEM . THIS, EVEN OTHERWISE INCUMBENT, WAS PARTICULARLY SO NOTING THE ASSESSEE S CONTENTION, RAISED PER GD. 3 OF HIS APPEAL, THAT THE PROPERTY, CAPITAL GAINS ON THE SALE OF WHICH HAS BEEN BROUGHT TO TAX, IS UNDER DISPUTE. 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. 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, AS STATED, OUT OF STATION. THE APEX COURT WHILE DISMISSING THE APPEAL S MADE IT CLEAR THAT IT WOULD NOT RESTORE THE APPEALS. 4. IT MAY BE RELEVANT TO REPRODUCE THE ORDER-SHEET ENTRY ON THE DATE ON WHICH THE HEARING WAS ADJOURNED LAST (I.E., 26/11/2018): ITA NO. 480/ASR/2017 (AY 2011-12) SURYA AMIN V. ITO 3 PRESENT FOR THE ASSESSEE: NONE PRESENT FOR REVENUE : SH. CHARAN DASS, SR. DR . NONE FOR THE ASSESSEE, AND NEITHER THE DEFECTS AS C OMMUNICATED BY THE REGISTRY ARE REMOVED. UNDER THE CIRCUMSTANCES, THE ASSESSEE IS P ROVIDED ONE MORE OPPORTUNITY TO DO SO IN THE INTEREST OF JUSTICE. ADJOURNED TO 0 7/3/2019. INFORM THE ASSESSEE. AS AFORE-STATED, THERE IS NO ADJOURNMENT APPLICATIO N IN THE INSTANT CASE. THE APPEAL IS ALSO TIME BARRED BY 28 DAYS. THERE WAS NO REPRES ENTATION EVEN BEFORE THE LD. CIT(A), THE FIRST APPELLATE AUTHORITY, DESPITE ABUN DANT OPPORTUNITY, CONSTRAINING HIM TO DISMISS THE ASSESSEES APPEAL IN LIMINE . THE ASSESSMENT IN THE INSTANT CASE STANDS REOPENED ON THE BASIS OF DEFINITE INFORMATIO N WITH THE REVENUE. THE CONTENTION AS TO THE PROPERTY TRANSFERRED BEING IN DISPUTE HAS ALSO BEEN CONSIDERED BY THE ASSESSING OFFICER (AO), TAKING A CONSIDERED, CONSCIOUS VIEW IN THE MATTER (PARAS 10 13 OF THE ASSESSMENT ORDER). WE ARE CON SCIOUS, AND MAY CLARIFY THAT WE ARE NOT ISSUING ANY FINDING IN THE MATTER; IN FACT, CANNOT, INASMUCH AS THE APPEAL IS UN-ADMITTED. THE OBSERVATION IS ONLY FROM THE STAND -POINT OF THE REVENUE HAVING CONSIDERED THE ASSESSEES CASE, ENABLING A PRIMA FACIE VIEW AS TO NON-MISCARRIAGE OF JUSTICE. WE MAY, IN PASSING, THOUGH ADD THAT THE ASSESSEE, IN RECEIPT OF CONSIDERATION, CANNOT BE REGARDED AS HAVING BEEN PR EJUDICED ON ACCOUNT OF THE IMPUGNED ASSESSMENT. THIS IS AS WHERE THE HONBLE H IGH COURT, WHOSE DIRECTIONS ARE BINDING ON ALL THE AUTHORITIES, HAS GIVEN A DIR ECTION (NOT ON RECORD) WITH REFERENCE TO THE ASSESSMENT PROCEEDINGS, THE ASSESS EE CAN MOVE THE AO, WHO IS BOUND TO ACT IN DEFERENCE THERETO. ELSE, THE ASSESS MENT PROCEEDINGS HAVE TO BE COMPLETED WITHIN THE STATUTORY TIME PERIOD. RATHER, IT IS OPEN FOR THE REVENUE TO, IN CASES OF DISPUTE OR UNCERTAINTY, FRAME ASSESSMENTS BOTH ON SUBSTANTIVE AS WELL AS PROTECTIVE BASIS. UNDER THE CIRCUMSTANCES, WE DISMI SS THE ASSESSEES APPEAL IN LIMINE AS UN-ADMITTED. WE DECIDE ACCORDINGLY. ITA NO. 480/ASR/2017 (AY 2011-12) SURYA AMIN V. ITO 4 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D AS UN-ADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 14, 201 9 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 14.03.2019 /GP/PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: C/O AHM & CO. (CHARTERED AC COUNTANTS) 3 RD FLOOR, BABA BUILDING-II, RESIDENCY ROAD, SRINAG AR 190001, J & K. (2) THE RESPONDENT: INCOME TAX OFFICER, WARD-3 (3), SRINAGAR, J &K. (3) THE CIT(APPEALS), JAMMU (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T. TRUE COPY BY ORDER