SHRI DEVINDER PAL , MOGA V. INCOME TAX OFFICER,WARD-3, MOGA

ITA 762/ASR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3344 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-02-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 18-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Audi alteram partem
• 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. 762/(ASR)/2017 ASSES SMENT YEAR: 2011-12 DEVINDER PAL S/O SH. GURDAS MAL THROUGH LEGAL HEIR SMT. SUSHMA RANI H.NO.33, RAILWAY ROAD, MOGA [PAN: ACNPP 5664J] VS. INCOME TAX OFFICER, WARD-3, MOGA (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 27.02.2019 DATE OF PRONOUNCEMENT: 27.02.2019 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)-3, LUDHIANA ( CIT (A) FOR SHORT) DATED 30.08.2017, DISMISSING THE ASSESSEES APPEAL CONTES TING HIS ASSESSMENT UNDER SECTION 143(3) R/W SECTION 147 OF THE INCOME TAX AC T, 1961 ('THE ACT' HEREINAFTER) VIDE ORDER DATED 28.01.2015 FOR ASSESSMENT YEAR (AY ) 2011-12. 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, HAS NOT CAME BACK UN-SERVED. THERE WAS NO REPRESENTATION EVEN AN ITA NO. 762/ASR/2017 (AY 2011-12) DEVINDER PAL V. ITO 2 EARLIER OCCASIONS, I.E., ON 01/08/2018 AND 14/11/20 18, THOUGH THE HEARING ON BOTH OCCASIONS, AGAIN ON DATES FOR WHICH NOTICES STOOD S ERVED, WERE ADJOURNED IN THE INTEREST OF JUSTICE, SO AS TO COMPLY WITH THE PRINC IPLE OF AUDI ALTERAM PARTEM . THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WH O SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE WELL KNOWN DICTUM VIG ILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT. THE PRINCIPLE HAS BE EN 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 M ERELY FILING THE APPEAL PAPERS, BUT EFFECTIVELY PURSUING IT. THE APEX COURT AS 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 07.2.2019 (COPY ON RECORD), DISMISSED THE APPEALS IN LIMINE REJECTING THE APPLICATION SEEKING ADJOURNMENT ON T HE GROUND THAT THE COUNSEL WAS NOT PRESENT IN THE COURT BUT STATED LY OUT OF STATION. THE APEX COURT WHILE DISMISSING THE APPEALS MADE IT CLEAR TH AT IT WOULD NOT RESTORE THE APPEALS. AS AFORE-STATED, THERE IS NO ADJOURNMENT A PPLICATION IN THE INSTANT CASE, AND WHICH IS THE THIRD SUCH INSTANCE. EVEN BEFORE T HE LD. CIT(A), THE FIRST APPELLATE AUTHORITY, THERE WAS NO REPRESENTATION, CONSTRAININ G HER TO DISMISS THE APPEAL EX PARTE, EVEN SHE HAS DISCUSSED THE FACTS OF THE CASE AS WE LL. THE APPEAL IN THE INSTANT CASE IS ALSO TIME BARRED BY 39 DAYS. UNDER THE CIRC UMSTANCES, WE ARE CONSTRAINED TO DISMISS THE ASSESSEES APPEAL IN LIMINE AS UN-ADMITTED AND, IN ANY CASE, FOR WANT OF PROSECUTION. WE DECIDE ACCORDINGLY. ITA NO. 762/ASR/2017 (AY 2011-12) DEVINDER PAL V. ITO 3 3. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 27, 2019 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 27.02.2019 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: DEVINDER PAL S/O SH. GURDAS MAL THROUGH LEGAL HEIR SMT. SUSHMA RANI H.NO.33, RAILWAY ROAD, MOGA (2) THE RESPONDENT: INCOME TAX OFFICER, WARD-3, MOGA (3) THE CIT(APPEALS)-3, LUDHIANA (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T. TRUE COPY BY ORDER