Shiv Lalit Mishra, Kolkata V. DCIT, CC - III, Kolkata, Kolkata

ITSSA 104/KOL/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7439 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-05-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 28-04-2016
• Assessment Year: misc
• Appeal Filed On: 17-08-2011
• Court: TRIBUNAL

Judgement Text

I.T.(SS)A. NO. 104/KOL./2011 BLOCK PERIOD: 01.04.1988 TO 29.10.1998 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.(SS)A. NO. 104/KOL/ 2011 BLOCK PERIOD 01.04.1988 TO 29.10.1998 SHIV LALIT MISHRA,................................. ..............................APPELLANT C/O. SALARPURIA JAJODIA & CO., 7, C.R. AVENUE, KOLKATA-700 072 [PAN: AFFPM 2165 Q] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. .............RESPONDENT CENTRAL CIRCLE-III, KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, E.M. BYE PASS, KOLKATA-700 107 APPEARANCES BY: N O N E, FOR THE ASSESSEE SHRI SANDEEP CHOUBEY, CIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : APRIL 28, 2016 DATE OF PRONOUNCING THE ORDER : APRIL 28, 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), CENTRAL-1 , KOLKATA DATED 30.01.2009. 2. IN THIS CASE, THE APPEAL FILED BY THE ASSESSEE W AS EARLIER DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED 02.05.2012 FOR NON-PROSECUTION. THEREAFTER THE ASSESSEE FILED A MISCELLANEOUS APPLI CATION AND WHILE ALLOWING THE SAME, THE EX PARTE ORDER PASSED DISPOS ING OF THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION WAS RE-CALLED BY T HE TRIBUNAL. THE I.T.(SS)A. NO. 104/KOL./2011 BLOCK PERIOD: 01.04.1988 TO 29.10.1998 PAGE 2 OF 3 TRIBUNAL ALSO DIRECTED THE REGISTRY TO FIX THE APPE AL OF THE ASSESSEE FOR HEARING AFRESH. ACCORDINGLY, THE APPEAL OF THE ASSE SSEE WAS FIXED FOR HEARING FROM TIME TO TIME. THE HEARING, HOWEVER, CO ULD NOT TAKE PLACE AS THE ASSESSEE SOUGHT ADJOURNMENTS ON VARIOUS OCCASIO NS AND THERE WAS ALSO A DISPUTE RELATING TO THE EXACT DELAY ON THE P ART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL, WHICH THE L D. D.R. WAS DIRECTED TO VERIFY. THEREAFTER ON 04.01.2016, WHEN THE APPEAL C AME UP FOR HEARING BEFORE THE TRIBUNAL, IT WAS BROUGHT TO THE NOTICE O F THE TRIBUNAL THAT THE ASSESSEE HAS ALREADY PASSED AWAY. THE LD. AUTHORIZE D REPRESENTATIVE OF THE ASSESSEE, WHO WAS PRESENT IN THE COURT WAS ACCO RDINGLY DIRECTED BY THE TRIBUNAL TO FILE THE DEATH CERTIFICATE AS WELL AS LEGAL HEIR CERTIFICATE. THE SAID DIRECTION, HOWEVER, HAS REMAINED UN-COMPLI ED WITH. ON THE OTHER HAND, THE LD. AUTHORIZED REPRESENTATIVE OF TH E ASSESSEE HAS FILED A LETTER DATED 22.02.2016 WITHDRAWING HIS POWER OF AT TORNEY AND EXPRESSING HIS INABILITY TO PRODUCE DEATH CERTIFICA TE AND LEGAL HEIR CERTIFICATE ON THE GROUND THAT HE IS UNABLE TO CONT ACT ANY PERSON ON THE LAST KNOWN TELEPHONE NUMBER OF THE DECEASED ASSESSE E OR HIS LAST KNOWN ADDRESS. EVEN THE NOTICE OF HEARING FIXED TODAY, I. E. ON 28.04.2016 SENT TO THE ASSESSEE BY REGISTERED POST WITH A/D AT THE ADD RESS GIVEN IN THE APPEAL MEMO HAS COME BACK FROM THE POSTAL AUTHORITY UNDELIVERED. HAVING REGARD TO ALL THESE FACTS OF THE CASE, IT AP PEARS THAT NOBODY ON BEHALF OF THE ASSESSEE IS INTERESTED IN PROSECUTING THIS APPEAL FILED BEFORE THE TRIBUNAL. 3. 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 I.T.(SS)A. NO. 104/KOL./2011 BLOCK PERIOD: 01.04.1988 TO 29.10.1998 PAGE 3 OF 3 480, WE TREAT THIS APPEAL AS UNADMITTED AND DISMISS THE SAME FOR NON- PROSECUTION. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 28, 201 6. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 28 TH DAY OF APRIL, 2016 COPIES TO : (1) SHRI SHIV LALIT MISHRA, C/O. SALARPURIA JAJODIA & CO., 7, C.R. AVENUE, KOLKATA-700 072 (2) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-III, KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, E.M. BYE PASS, KOLKATA-700 107 (3) COMMISSIONER OF INCOME-TAX, KOLKATA; (4) CIT(APPEALS)-CENTRAL-1, KOLKATA; (4) THE DEPARTMENTAL REPRESENTATIVE (5) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.