Ellenbarrie Exim Ltd., Kolkata V. ACIT, Cir-7, Kolkata, Kolkata

ITA 716/KOL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4966 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 27-04-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 07-05-2012
• Court: TRIBUNAL
• Department Lawyers: IS DIRECTED AGAIN ST

Judgement Text

I.T.A. NO. 716/KOL./2012 ASSESSMENT YEAR: 2004-2005 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 716/KOL/ 2012 ASSESSMENT YEAR: 2004-2005 ELLENBARRIE EXIM LIMITED,.......................... ..............................APPELLANT 6C, ELGIN ROAD, KOLKATA-700 020 [PAN : AAACE 5768 L] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. .....................RESPONDENT CIRCLE-7, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: N O N E, FOR THE ASSESSEE SHRI A.K. PANDE, JCIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : APRIL 27, 2016 DATE OF PRONOUNCING THE ORDER : APRIL 29, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX-(APPEALS)-VIII, KOLK ATA DATED 12.03.2012. 2. IN THIS CASE, THE APPEAL FILED BY THE ASSESSEE W AS INITIALLY FIXED FOR HEARING ON 03.10.2012. HOWEVER, THE ASSESSEE SOUGHT ADJOURNMENT ON THE SAID DATE AND ACCORDINGLY THE HEARING WAS ADJOURNED TO 20.12.2012. ON 20.12.2012 THE ASSESSEE AGAIN SOUGHT ADJOURNMENT AN D ACCORDINGLY THE HEARING WAS ADJOURNED TO 08.03.2013. ON 08.03.2013 AS WELL AS ON THE COUPLE OF OCCASIONS THEREAFTER, THE BENCH DID NOT F UNCTION AND ACCORDINGLY THE APPEAL OF THE ASSESSEE WAS FIXED FO R HEARING THEREAFTER ON I.T.A. NO. 716/KOL./2012 ASSESSMENT YEAR: 2004-2005 PAGE 2 OF 3 23.04.2014. THE ASSESSEE, HOWEVER, AGAIN SOUGHT ADJ OURNMENT ON 23.04.2014 AS WELL AS ON 09.09.2014 WHEN ITS APPEAL WAS FIXED FOR HEARING BEFORE THE TRIBUNAL. THEREAFTER THE BENCH A GAIN DID NOT FUNCTION ON SOME OCCASIONS AND THE APPEAL OF THE ASSESSEE TH EREAFTER WAS FIXED FOR HEARING ON 30.12.2015. NONE, HOWEVER, APPEARED ON B EHALF OF THE ASSESSEE AT THE TIME OF HEARING FIXED ON 30.12.2015 AS WELL AS THEREAFTER ON 22.02.2016. THE HEARING, THEREFORE, WAS ADJOURNE D TO 27.04.2016 WITH A DIRECTION TO THE REGISTRY TO SEND THE NOTICE OF T HE SAID HEARING TO THE ASSESSEE BY REGISTERED POST WITH A/D. ON 27.04.2016 , I.E. TODAY, AGAIN NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE NOR A NY APPLICATION SEEKING ADJOURNMENT HAS BEEN FILED. EVEN THE NOTICE SENT TO THE ASSESSEE BY REGISTERED POST WITH A/D HAS COME BACK UNDELIVER ED FROM THE POSTAL AUTHORITIES WITH A REMARK NOT KNOWN. THE ASSESSEE THUS HAS NOT BOTHERED TO INFORM THE CHANGE OF ADDRESS, IF ANY, I N ORDER TO FACILITATE THE REGISTRY TO SERVE THE NOTICE OF HEARING. KEEPING IN VIEW ALL THESE FACTS OF THE CASE, IT APPEARS THAT THE ASSESSEE IS NOT SERIO USLY INTERESTED IN PROSECUTING THIS APPEAL FILED BEFORE THE TRIBUNAL. 3. IT IS ALSO OBSERVED THAT THE MAIN ISSUE INVOLVED IN THIS APPEAL OF THE ASSESSEE RELATING TO THE DISALLOWANCE OF RS.62,64,2 9,732/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPE ALS) ON ACCOUNT OF COMMISSION PAID TO TWO PARTIES IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE COORDINATE BENCH OF THIS TRI BUNAL IN ASSESSEES OWN CASE FOR A.Y. 2005-06 RENDERED VIDE IS ORDER DATED 21.07.2011 PASSED IN ITA NO. 1871/KOL/2008, WHEREIN A SIMILAR DISALLOWAN CE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION PAID TO THE SAME TWO PARTIES WAS CONFIRMED BY THE TRIBUNAL. AS A MATTER OF FACT, THE LD. CIT(APPEALS) IN HIS IMPUGNED ORDER HAS RELIED ON THE SAID DECISION OF THE TRIBUNAL TO CONFIRM THE SIMILAR DISALLOWANCE MADE BY THE ASSESS ING OFFICER ON ACCOUNT OF COMMISSION PAID TO THE TWO PARTIES. I.T.A. NO. 716/KOL./2012 ASSESSMENT YEAR: 2004-2005 PAGE 3 OF 3 4. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT T HOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE WEL L KNOWN DICTUM - VIGILANTIBUS, NON DORMIENTIBUS, JURA SUBVENIENT. CONSIDERING THE FACTS AND KEEPING IN MIND THE PROVISIONS OF RULE 19(2) OF THE ITAT RULES AS WAS CONSIDERED IN THE CASE OF CIT VS.- MULTIPLAN INDIA PVT. LTD. 38 ITD 320 (DEL.) AND THE JUDGMENT OF THE HONBLE MADHYA PRADE SH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS.- C.W.T . REPORTED IN 223 ITR 480, WE TREAT THIS APPEAL AS UNADMITTED AND DISMISS THE SAME FOR NON- PROSECUTION. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 29, 201 6. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 29 TH DAY OF APRIL, 2016 COPIES TO : (1) ELLENBARRIE EXIM LIMITED, 6C, ELGIN ROAD, KOLKATA-700 020 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-7, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME-TAX, KOLKATA; (4) CIT(APPEALS)-VIII, KOLKATA; , (4) THE DEPARTMENTAL REPRESENTATIVE (5) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.