Super Enterprise, Burdwan vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH : KOLKATA

[Before Hon'ble Sri P.K.Bansal, AM & Hon'ble Sri Mahavir Singh, JM ] I.T.A No. 1495/Kol/2012 Assessment Year : 2009-2010 M/s. Super Enterprise -vs.- I.T.O., Ward-2(3), Burdwan Durgapur [PAN : AAXFS 7550 G) (Appellant) (Respondent) For the Appellant : None For the Respondent : Shri Pinaki Mukherjee, JCIT, Sr.DR

Date of Hearing : 27.05.2015 Date of Pronouncement : 27.05.2015 ORDER

Per Shri P.K.Bansal, AM

This appeal has been filed by the assesee against the order of ld.CIT(A)- Durgapur for Assessment Year 2009-10.

2. During the course of hearing nobody was present on behalf of the assessee, although the notice for hearing was sent by registered post to the assessee vide RPAD on 03.03.2015 but it was returned by the postal authorities with the remark "returned to sender" On earlier several occasions, the assessee sought for adjournment and the same was granted. This time also, the assessee did not appear at the time of hearing nor even he sought for adjournment. 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, "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 2 ITA No.1495/Kol/2012 M/s.Super Enterprise A.Yr.2009-10 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.

8. The assessee shall be free to move the petition before this Tribunal praying for recalling of this order by explaining the sufficient cause for his non appearance.

9. In the result, the appeal of the assessee is dismissed.

Order pronounced in the open Court on 27.05.2015.

Sd/- Sd/-

[ Mahavir Singh ] [ P.K.Bansal ] Judicial Member Accountant Member

Dated : 27.05.2015.

[RG PS] 2 3 ITA No.1495/Kol/2012 M/s.Super Enterprise A.Yr.2009-10

Copy of the order forwarded to:

1.M/s. Super Enterprise, C/o, Arabinda Ghosh, Khottadihi, Burdwan-713346.

2. I.T.O., Ward-2 (3), Durgapur.

3. C.I.T.(A), Durgapur. 4. C.I.T. Kolkata.

5. CIT(DR), Kolkata Benches, Kolkata.

True copy By Order

Asstt.Registrar, ITAT, Kolkata Benches

3