Mahaveer Commotrade Private Limited , Kolkata V. ITO, Ward - 9(1), Kolkata , Kolkata

ITA 579/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8108 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 03-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA BEFORE: SHRI P. M. JAGTAP, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO.579/KOL/2018 (ASSESSMENT YEAR: 2012-13) MAHAVEER COMMOTRADE PVT.LTD. APPELLANT [PAN: AAGCM8399H] VS ITO, WARD-9(1), KOLKATA RESPONDENT FOR THE APPELLANT : NONE FOR THE RESPONDENT : SHRI A. K. NAYAK, CIT-DR DATE OF HEARING : 03.07.2019 DATE OF PRONOUNCEMENT : 17.07.2019 ORDER PER SHRI S.S. VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 08.03.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-18, KOLKATA [CIT(A)] FOR ASSESSMENT YEAR 2012-13 WHEREIN HE CONFIRMED THE ORDER OF AO EX-PARTE OF ASSESSEE. 2. WE FIND NO REPRESENTATION ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FILED SEEKING ADJOURNMENT. THE ASSESSEE CALLED ABSENT AND WE PROCEED TO HEAR LD. DR AND PASS ORDER ON PERUSAL OF THE MATERIAL AVAILABLE ON RECORD. 3. HEARD LD. DR AND PERUSED THE EVIDENCE ON RECORD. IT IS NOTED FROM THE RECORD THAT THE ASSESSEE FILED THE AFORESAID APPEAL ON 03.04.2018. THE REGISTRY, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA ISSUED NOTICE DATED 21.02.2019 INTIMATING THE DATE OF FIXING OF HEARING ON 18.03.2019 BY R.P.A.D. TO THE ASSESSEE. IT IS NOTED THAT THERE WAS NO PROCEEDINGS ON 18.03.2019 AND THE APPEAL WAS ADJOURNED TO 25.04.2019. THE SAID INFORMATION WAS DISPLAYED ON THE NOTICE BOARD. AGAIN ON I.T.A NO.579/KOL/2018 ASSESSMENT YEAR: 2012-13 PAGE | 2 25.04.2019 THERE WERE NO PROCEEDINGS AND AS SUCH THE APPEAL WAS ADJOURNED TO 21.05.2019. WE NOTE THAT THE ASSESSEE CALLED ABSENT ON 21.05.2019 AND ADJOURNED THE APPEAL TO 03.07.2019 FOR NON-REPRESENTATION ON BEHALF OF ASSESSEE. THE REGISTRY, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA ISSUED ANOTHER NOTICE DATED 21.05.2019 INTIMATING THE DATE OF FIXING THE HEARING ON 03.07.2019 TO THE ASSESSEE BY R.P.A.D. WE FIND NO REPRESENTATION ON BEHALF OF THE ASSESSEE NOR AN APPLICATION MADE SEEKING ADJOURNMENT TODAY I.E. 03.07.2019. IT IS ALSO NOTED FROM THE RECORD THAT THE ASSESSEE REMAINED ABSENT BEFORE THE CIT(A) IN THE FIRST APPELLATE PROCEEDINGS AND FOR NON-COMPLIANCE, THE CIT(A) DISMISSED THE APPEAL OF ASSESSEE. IT IS CLEAR FROM IMPUGNED ORDER VIDE PARA-3. WE FIND NO EVIDENCES WERE FILED BEFORE CIT(A) IN SUPPORT OF THE GROUNDS RAISED THEREIN BY THE ASSESSEE ENABLING THE CIT(A) TO ADJUDICATE THE ISSUES RAISED BEFORE HIM. BEFORE US, NO EVIDENCE WHATSOEVER FILED IN SUPPORT OF THE CLAIMS OF ASSESSEE AND IN SPITE OF HAVING THE KNOWLEDGE OF DATES OF HEARING, THE ASSESSEE FAILED TO APPEAR BEFORE THIS TRIBUNAL. IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL FILED BEFORE THIS TRIBUNAL IN SPITE OF HAVING RECEIVED NOTICES AND HAVING KNOWLEDGE OF THE DATES OF HEARING. HENCE THE APPEAL FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED FOR NON PROSECUTION. FOR THIS VIEW WE FIND SUPPORT FROM THE FOLLOWING DECISIONS:- (1). IN THE CASE OF CIT VS B.N. BHATTACHARJEE AND ANOTHER, REPORTED IN 118 ITR 461 [RELEVANT PAGES 477 & 478] WHEREIN THEIR LORDSHIPS HAVE HELD THAT: THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. (2). IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS CWT; 223 ITR 480 (MP) WHILE DISMISSING THE REFERENCE MADE AT THE INSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN THEIR ORDER : 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). IN THE CASE OF COMMISSIONER OF INCOME-TAX VS MULTIPLAN INDIA (P) LTD.: 38 ITD 320(DEL), THE APPEAL FILED BY THE REVENUE BEFORE THE TRIBUNAL, WHICH WAS FIXED FOR HEARING. BUT ON THE DATE OF HEARING NOBODY REPRESENTED THE REVENUE/APPELLANT NOR ANY COMMUNICATION FOR ADJOURNMENT WAS RECEIVED. THERE WAS NO COMMUNICATION OR INFORMATION AS TO WHY THE REVENUE CHOSE TO REMAIN ABSENT ON THAT DATE. THE TRIBUNAL ON THE BASIS OF INHERENT POWERS, TREATED THE APPEAL FILED BY THE REVENUE I.T.A NO.579/KOL/2018 ASSESSMENT YEAR: 2012-13 PAGE | 3 AS UN ADMITTED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. 4. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS; I.E. VIGILANTIBUS NON DORMIENTIBUS, JURA SUBVENIUNT. 5. WE FIND THE ISSUE IS RELATING TO ADDITION U/SEC. 68 OF THE ACT ON ACCOUNT OF SHARE CAPITAL AND PREMIUM WHICH REQUIRES THOROUGH VERIFICATION OF FINANCIALS OF ASSESSEE AS WELL AS SHARE SUBSCRIBING COMPANIES. AS DISCUSSED ABOVE, WE FIND NO EVIDENCE FILED BY THE ASSESSEE BEFORE ALL THE AUTHORITIES BELOW INCLUDING THIS TRIBUNAL, THEREFORE, WE HAVE NO OPTION EXCEPT TO DISMISS THE APPEAL FOR NON-PROSECUTION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED FOR NON- PROSECUTION . ORDER PRONOUNCED IN THE OPEN COURT ON 17.07.2019. SD/- SD/- [P. M. JAGTAP] [S.S. VISWANETHRA RAVI] VICE PRESIDENT JUDICIAL MEMBER DATED : 17.07.2019 PLACE : KOLKATA BIDHAN COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT MAHAVEER COMMOTRADE PVT. LTD., 134/1, M.G. ROAD, 3 RD FLOOR, KOLKATA-700007. 2 RESPONDENT ITO, WARD - 9(1) , KOLKATA 3 . THE CIT(A) - 18 , KOLKATA 4. CIT , KOLKATA 5. DR, KOLKATA BEN CHES, KOLKATA //TRUE COPY// BY ORDER, ASSISTANT REGISTRAR, ITAT, KOLKATA