Vijay Kumar Aggarwal, New Delhi vs Assessee
- CitationITA No. 2212/Del/2011 : Asstt. Year : 2006-07
Ratio decidendi
The rule this decision rests on
The Tribunal may dispose of an appeal as unadmitted, or dismiss it for non-prosecution, where the assessee, having sought and been granted an adjournment to a fixed date of hearing announced in open court in the presence of both parties, fails without explanation to appear or seek further adjournment on that date, the inference being that the assessee is not interested in prosecuting the appeal. Under rule 19(2) of the Income-tax Appellate Tribunal Rules, as applied in the Multiplan India Ltd. decision, an appeal in which the assessee fails to take steps to prosecute it may be treated as unadmitted; the maxim vigilantibus et non dormientibus jura subveniunt informs that approach, so that a party who does not pursue its rights forfeits the Tribunal's assistance. Following the Tukojirao Holkar and New Diwan Oil Mills decisions, where the party at whose instance a reference is made fails to appear or to take steps to enable its hearing, the forum is not bound to decide the matter on its merits. "Appeal" in the sense of the statute connotes not merely the filing of a memorandum of appeal but effectively pursuing it, as held in the B. Bhattacharjee decision, so that non-prosecution of a filed appeal justifies its dismissal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'H', NEW DELHI Before Sh. I. P. Bansal, JM And Sh. N. K. Saini, AM ITA No. 2212/Del/2011 : Asstt. Year : 2006-07 Sh. Vijay Kumar Aggarwal, Vs ACIT, Circle 29(1), C/o-Dharam Taneja Associates, New Delhi 13/17, Punjabi Bagh Extn., New Delhi-26 (APPELLANT) (RESPONDENT) PAN No. ABIPA2090F Assessee by : None Revenue by : Sh. J. P. Chandrakar, Sr. DR Date of Hearing : 09.02.2015 Date of Pronouncement : 09.02.2015
ORDER Per N. K. Saini, AM:
This is an appeal by the assessee against the order dated 23.03.2011 of ld. CIT(A)-XXV, New Delhi.
2. Earlier this case was fixed for hearing on 23.09.2014 and on the request of the assessee, the case was adjourned for hearing on 09.02.2015. The said date of hearing was announced in the open court in the presence of both the parties. However, at the time of hearing nobody was present on behalf of the assessee neither any adjournment was sought. It, therefore, appears that the assessee is not interested to prosecute the matter.
2 ITA No. 2212/Del/2011 Vijay Kumar Aggarwal
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 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.
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7. So by respectfully following the view taken in the cases cited supra, we dismiss the appeal for non-prosecution.
8. In the result, the appeal filed by the assessee is dismissed. (Order Pronounced in the Court on 09/02/2015)
Sd/- Sd/-
(I. P. Bansal) (N. K. Saini) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 09/02/2015 *Subodh* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5.DR: ITAT ASSISTANT REGISTRAR
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