Shri Ram Prakash Pandey , Kolkata V. DCIT, Central Circle - 3(3), Kolkata , Kolkata

ITSSA 81/KOL/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8661 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-01-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 03-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAJINDER PAL SINGH

Judgement Text

IT(SS)A NOS. 88 & 79 TO 81/KOL/2018 SHRI RAM PRAKASH PANDEY A.YS. 2009-10 TO 2012-13 1 | P A GE , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI J. SUDHAKAR REDDY, AM AND SHRI A. T. VARKEY, JM] I.T.(SS)A. NOS. 88 & 79 TO 81/KOL/2018 ASSESSMENT YEARS: 2009-10 TO 2012-13 SHRI RAM PRAKASH PANDEY (PAN:AEXPP 8028 G) VS. DCIT, CC-3(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 07.01.2021 DATE OF PRONOUNCEMENT 13.01.2021 FOR THE APPELLANT NONE FOR THE RESPONDENT SHRI JAJINDER PAL SINGH, CIT ORDER PER SHRI A.T. VARKEY, JM: THESE ARE APPEALS PREFERRED BY THE ASSESSEE AGAINS T THE COMMON ORDER OF LD. CIT(A) 21, KOLKATA DATED 14.06.2018 FOR AYS. 2009- 10 TO 2012-13. 2. AT THE OUTSET, IT IS NOTED THAT THESE APPEALS H AVE BEEN FIXED FOR HEARING ON THIRTEEN (13) OCCASIONS AND WE ALSO NOTE THAT THE N OTICES DISPATCHED BY SPEED POST ALONG WITH RPAD HAS BEEN SENT FROM THIS TRIBUNAL AT ITS ADDRESS GIVEN IN FORM-36 HAVE BEEN RETURNED BACK UN-SERVED. WE NOTE THAT THE ADDRESS ON WHICH THE TRIBUNAL HAS SENT NOTICES IS AS GIVEN IN FORM 36 AS UNDER: SHRI RAM PRAKASH PANDEY, P-214, BLOCK-A, LAKE TOWN, KOLKATA-700089. 3. ON A PERUSAL OF THE GROUNDS OF APPEAL, WE NOTE T HAT BASICALLY ASSESSEE ASSAILS THE ADDITION MADE PURSUANT TO SEARCH CONDUCTED ON 2 1/22.11.2013 AT THE THE ASSESSEES RESIDENCE & BUSINESS PREMISES. THE ADDITION WHICH IS ASSAILED BEFORE US INTER-ALIA IN IT(SS)A NOS. 88 & 79 TO 81/KOL/2018 SHRI RAM PRAKASH PANDEY A.YS. 2009-10 TO 2012-13 2 | P A GE DIFFERENT YEARS ARE IN RESPECT OF AGRICULTURAL INCO ME AND CASH DEPOSITS. THE MAIN PLEA OF THE ASSESSEE IS THAT THERE HAS BEEN NO INCRIMINA TING MATERIAL AGAINST ASSESSEE WHICH WAS UNEARTHED/SEIZED DURING THE SEARCH. WE NOTE THA T OTHER THAN AVERMENTS MADE IN THE GROUNDS OF APPEAL, NEITHER ANY PAPER BOOKS / CO PY OF PANCHANAMAS DRAWN BY THE DEPARTMENT DURING THE SEARCH AT THE ASSESSEES PREM ISES NOR THE FACTUAL ASPECT AS TO WHETHER THE ASSESSMENT YEARS ASSAILED BEFORE US WE RE PENDING BEFORE THE AO ON THE DATE OF SEARCH IS NOT DISCERNABLE FROM THE ORDERS O F THE AUTHORITIES BELOW. THEREFORE, IN THE ABSENCE OF THESE DOCUMENTS/FACTS, WE ARE UN-ABL E TO APPRECIATE THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE WHICH IS A MIXED QUES TION OF FACT AND LAW. AND, SINCE THE NOTICES SENT BY SPEED POST ALONG WITH RPAD HAS BEEN RETURNED; AND THE ASSESSEE HAS NOT BOTHERED TO FILE THE CORRECT ADDRESS OR INFORM US THE CHANGE IN ADDRESS IF ANY, SO WE NOTE THAT THE ASSESSEE DOES NOT PURSUE HIS APPEA L EARNESTLY. IN THE AFORESAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THERE IS NO POINT IN KEEPING THE APPEAL PENDING BEFORE THIS TRIBUNAL. AND AS STATED SUPRA WITHOUT F ILING OF THE COPY OF PANCHANAMAS DRAWN BY DEPARTMENT DURING THE SEARCH, AND THE FAC TS AS TO WHETHER THE ASSESSMENT YEARS ASSAILED BEFORE US WERE PENDING BEFORE THE AO ON THE DATE OF SEARCH IS NOT DISCERNABLE FROM THE ORDERS OF THE AUTHORITIES BELO W, THE LEGAL / FACTUAL QUESTIONS CANNOT BE ADJUDICATED AND SINCE THE ASSESSEE HAS FU RNISHED BEFORE US AN ADDRESS IN WHICH THE NOTICE COULD NOT BE SERVED BY THE POSTAL DEPARTMENT, WE DO NOT HAVE A CHOICE BUT TO DISMISS THE APPEAL EX-PARTE, THOUGH W E DO NOT RESORT TO SUCH PRACTICE. SO BY APPLYING THE LEGAL MAXIM VIGILANTIBUS NON DORMIENTIBUS, JURA SUBVENIUNT MEANING THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS, WE ARE INCLINED TO DISMISS THE APPEALS. 4. FOR TAKING SUCH A VIEW WE FIND SUPPORT FROM T HE FOLLOWING DECISIONS :- (1). IN THE CASE OF CIT VS B.N.BHATTACHRGEE AND ANO THER, REPORTED IN 118 ITR 461 [RELEVANT PAGES 477 & 478] WHEREIN THEIR LORDSHIPS HAVE HELD THAT : THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPE AL 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 TH E ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN THEIR ORDER : IT(SS)A NOS. 88 & 79 TO 81/KOL/2018 SHRI RAM PRAKASH PANDEY A.YS. 2009-10 TO 2012-13 3 | P A GE IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAP ER 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 M ULTIPLAN INDIA (P) LTD.: 38 ITD 320(DEL), THE APPEAL FILED BY THE REVENUE BEFORE TH E TRIBUNAL, WHICH WAS FIXED FOR HEARING. BUT ON THE DATE OF HEARING NOBODY REPRESEN TED THE REVENUE/APPELLANT NOR ANY COMMUNICATION FOR ADJOURNMENT WAS RECEIVED. THERE W AS NO COMMUNICATION OR INFORMATION AS TO WHY THE REVENUE CHOSE TO REMAIN A BSENT ON THAT DATE. THE TRIBUNAL ON THE BASIS OF INHERENT POWERS, TREATED THE APPEAL FILED BY THE REVENUE AS UN ADMITTED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLA TE TRIBUNAL RULES, 1963. 5. THE ASSESSEE, IF SO DESIRED, SHALL BE AT LIB ERTY TO MOVE THIS TRIBUNAL PRAYING FOR RECALLING THESE ORDERS FOR JUST-CAUSE AND EXPLAININ G REASONS FOR NON-FILING OF CORRECT ADDRESS ETC. AND IF THE TRIBUNAL IS SATISFIED, THEN THESE ORDERS MAY BE RECALLED. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE D ISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13.01.20 21. SD/- SD/- (J( (J.S. REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13.01.2021 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- SHRI RAM PRAKASH PANDEY, P-214, BLOCK-A, LAKE TOWN, KOLKATA- 700089, WEST BENGAL 2. RESPONDENT- DCIT, CC-3(3), KOLKATA 3. THE CIT(A)- , KOLKATA (SENT THROUGH E-MAIL) 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES, KOLKATA