M/s Sidhi Vinayak Alloy Industries, Delhi V. Income Tax Officer, Kathua

ITA 621/ASR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3336 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-06-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 28-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SHARMA LD
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.621(ASR)/2017 ASSESSMENT YEAR:2012-13 M/S. SIDHI VINAYAK ALLOY INDUSTRIES B-132, PREET VIHAR, DELHI-110092 PAN:ABBFS1745A VS. INCOME TAX OFFICER J&K, KATHUA (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SH. S.K.SHARMA (LD. DR) DATE OF HEARING: 11.06.2018 DATE OF PRONOUNCEMENT: 13.06.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APPELLANT, ON FEELING AGGRIEVED AGAINST THE ORD ER DATED 23.02.2017, IMPUGNED HEREIN, PASSED BY THE LD. CIT(A) -J&K, JAMMU, U/S 250(6) OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT). 2. IT IS APPARENT FROM THE RECORD, THAT THERE IS DELAY O F 18 DAYS IN FILING OF THE APPEAL AND THE DELAY HAS BEEN E XPLAINED BY THE LD. AR BY GIVING REASON TO THE EFFECT THAT THE FI RM SINCE ITA NO.621/ASR/2017 (A.Y:2012-13) M/S SIDHI VINAYAK ALLOY INDUSTRIES, DEL HI VS. ITO 2 CLOSED ITS BUSINESS ACTIVITIES IN KATHUA, DISTT. JAMMU, IS N OT HAVING PROPER STAFF AND IN THE ABSENCE OF STAFF, THE OR DER PASSED BY THE A.O FOR THE ASSESSMENT YEAR WAS NOT TRACED AND IT CAUSED DELAY OF ABOUT 20 DAYS IN FILING APPEAL BEFORE HONBL E TRIBUNAL. THE DELAY IS NOT INTENTIONAL AND IN THE INTEREST OF J USTICE, THE SAME MAY PLEASE BE CONDONED. THE LD. DR HAS NOT REFUTED THE EXPLANATION OF THE LD. AR, HENCE, CONSIDERING THE EXPLANATION AND IN THE INTEREST OF NATURAL JUSTICE, THE DELAY OF 18 DAYS IN FILING THE APPEAL HAS BEEN CONDONED. 3. NOW COMING TO THE MERIT OF THE CASE, IT REFLECTS FR OM THE ORDER IMPUGNED HEREIN, THAT NINE NOTICES HAVE BEEN ISSU ED TO THE ASSESSEE FROM TIME TO TIME ON ADDRESS GIVEN IN FORM N O.35, HOWEVER, THE SAME REMAINED UNCOMPLIED. THERE WAS NO RESPONSE FROM THE ASSESSEE AS TO WHY THE NOTICES REMAINED UNCOMPLIED AND UNATTENDED, THEREFORE, IN THE SAID EVE NTUALITY THE LD. CIT(A) FINDING NO OPTION DISMISSED THE APPEAL OF THE ASSESSEE AS EX-PARTE ON NON-PROSECUTION, IN LIMINE . 4. THE ASSESSEE HAS PREFERRED THE INSTANT APPEAL AGAINST TH E SAID ORDER AND IN SUPPORT OF NON-APPEARANCE, IT WAS SUB MITTED BY THE LD. COUNSEL THAT THE ASSESSEE WAS PREVENTED TO APP EAR BEFORE THE LD. CIT(A) DUE TO ABOVE MENTIONED REASON, HOWEVER NOW UNDERTAKES TO APPEAR AS AND WHEN REQUIRED, IF THE APPEAL ITA NO.621/ASR/2017 (A.Y:2012-13) M/S SIDHI VINAYAK ALLOY INDUSTRIES, DEL HI VS. ITO 3 BE REMANDED TO THE FILE OF THE LD. CIT(A) FOR DECISIO N AFRESH BECAUSE THE LD. CIT(A) HAS FAILED TO PASS THE ORDER ON MERIT. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE OR DER IMPUGNED HEREIN. THE APPELLANT DID NOT BOTHER ITSELF TO APPEAR AND CO-OPERATE WITH APPELLATE PROCEEDINGS EVEN AFTER A FFORDING NINE OPPORTUNITIES. ALTHOUGH THE INSTANT APPEAL OF T HE ASSESSEE IS LIABLE TO BE DISMISSED IN ORDER TO GIVE EFFECT TO THE PRINCIPLE THAT LAW DOES NOT ASSIST THE PERSON WHO IS INACTIVE AND SL EEPS OVER HIS RIGHTS BY ALLOWING THEM WHEN CHALLENGED OR DI SPUTED TO REMAIN DORMANT, WITHOUT ASSERTING THEM IN A COURT OF L AW. THE, PRINCIPLE WHICH FORMS THE BASIS OF THIS RULE IS EXPRESSED IN THE MAXIM VIGILANTIBUS , NON DORMIENTIBUS , JURA SUBVENIUNT (LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEE P OVER THEIR RIGHTS), BUT EVEN A VIGILANT LITIGANT IS PRONE TO COMMIT MISTAKES. AS THE APHORISM TO ERR IS HUMAN AND IS MORE A PRACTICAL NOTION OF HUMAN BEHAVIOUR THAN AN ABSTRACT P HILOSOPHY, THE UNINTENTIONAL LAPSE ON THE PART OF A LITIGANT SHO ULD NOT NORMALLY CAUSE THE DOORS OF THE JUDICATURE PERMANENTLY CLOSED BEFORE HIM. THE EFFORT OF THE COURT SHOULD NOT BE ONE OF FINDING MEANS TO PULL DOWN THE SHUTTERS OF ADJUDICATORY JURISDI CTION BEFORE A PARTY WHO SEEKS JUSTICE, ON ACCOUNT OF ANY MISTAK E COMMITTED BY HIM, BUT TO SEE WHETHER IT IS POSSIBLE TO E NTERTAIN HIS GRIEVANCE IF IT IS GENUINE, THEREFORE, CONSIDERING T HE FACTS THAT THE LD. CIT(A) HAS NOT PASSED THE ORDER UNDER CHAL LENGE ON MERIT, HENCE WE FEEL IT APPROPRIATE AND PROPER TO RE MAND BACK THE INSTANT CASE TO THE FILE OF THE LD. CIT(A) TO DECID E AFRESH ON ITA NO.621/ASR/2017 (A.Y:2012-13) M/S SIDHI VINAYAK ALLOY INDUSTRIES, DEL HI VS. ITO 4 MERITS, WHILE AFFORDING PROPER AND REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE/APPELLANT, IN ORDER TO FOLL OW THE PRINCIPLE OF NATURAL JUSTICE. WE ALSO FEEL IT APPROPRIATE TO DIRECT THE ASSESSEE/APPELLANT TO EXTEND ITS FULL CO-OPERATION AND PARTICIPATION IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AS AND WHEN REQUIRED AND IN CASE OF FURTHER DEFAULT, T HE ASSESSEE SHALL NOT BE SUBJECTED TO ANY LENIENCY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.06.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED:13.06.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) M/S. SIDHI VINAYAK, ALLOY INDUSTRIES, DELHI (2) THE ITO, J&K, KATHUA (3) THE CIT(A), J&K, JAMMU (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER