Linux Software Pvt. Ltd., Gurgaon vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'D', NEW DELHI Before Sh. N. K. Saini, AM And Sh. C. M. Garg, JM ITA No. 3058/Del/2011 : Asstt. Year : 2003-04 M/s Linux Software Pvt. Ltd., Vs CIT(A)-VII, 603, 6th Floor, JMD, Pacific Square, Vikas Bhawan, Sector-15, Gurgaon New Delhi (APPELLANT) (RESPONDENT) PAN No. AAACL6963E Assessee by : None Revenue by : Sh. Gaurav Dudeja, Sr. DR Date of Hearing : 04.02.2015 Date of Pronouncement : 04.02.2015

ORDER Per N. K. Saini, AM:

This is an appeal by the assessee against the order dated 04.04.2011 of ld. CIT(A)-VII, New Delhi.

2. During the course of hearing nobody was present on behalf of the assessee. The notice of hearing issued on 10.12.2014 was sent to the assessee at the address mentioned in the impugned order and the assessment order which had not been returned by the postal authority. It, therefore, appears that the assessee is not interested to prosecute the matter.

3. The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in well known dictum, 2 ITA No. 3058/Del/2011 Linux Software Pvt. Ltd.

"VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT'. Considering the facts and keeping in view the provisions of rule 19(2) of the Income-tax Appellate Tribunal Rules as were considered in the case of CIT vs. Multiplan India Ltd., (38 ITD

320)(Del), we treat this appeal as unadmitted.

4. Similar view has been taken by the Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukojirao Holkar vs. CWT (223 ITR

480) wherein it has been held as under:

"if the party, at whose instance the reference is made, fails to appear at the hearing, or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, the court is not bound to answer the reference."

5. Similarly, Hon'ble Punjab & Haryana High Court in the case of New Diwan Oil Mills vs. CIT (2008) 296 ITR 495) returned the reference unanswered since the assessee remained absent and there was not any assistance from the assessee.

6. Their Lordships of Hon'ble Supreme Court in the case of CIT vs. B. Bhattachargee & Another (118 ITR 461 at page 477-478) held that the appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same.

7. So by respectfully following the view taken in the cases cited supra, we dismiss the appeal for non-prosecution.

3 ITA No. 3058/Del/2011 Linux Software Pvt. Ltd.

8. In the result, the appeal filed by the assessee is dismissed. (Order Pronounced in the Court on 04/02/2015)

Sd/- Sd/-

(C. M Garg) (N. K. Saini) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 04/02/2015 *Subodh* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5.DR: ITAT ASSISTANT REGISTRAR