ANIL OMPRAKASH KAUSHIK,MUMBAI vs. CIT (A), DELHI

The Assessee being aggrieved preferred first appeal before the Ld. Commissioner, who by impugned order affirmed the said additions by dismissing the appeal of the Assessee in limine for non-appearance, against which the Assessee in an appeal before us.

We have given thoughtful consideration to the order impugned herein. We observe that though the Ld. Commissioner before deciding the appeal filed before him, issued various notices to the Assessee, however, the Assessee neither made any compliance nor filed any documents/submissions therefore finding no option in the peculiar facts and circumstances and considering that the Assessee is not interesting in pursuing its appeal, was constrained to dismiss the appeal of the Assessee in limine. It clearly appears from the order that the Assessee did not bother to appear and co- ordinate with appellate proceedings even after affording opportunities. Although the instant appeal of the Assessee is liable to be dismissed in order to give effect to the principle that law does not assist the person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant, without asserting them in a court of law. The, principle which forms the basis of this rule is expressed in the maxim vigilantibus, non dormientibus, jurasubveniunt (Law assists those who are vigilant and not those who sleep over their rights), but even a vigilant litigant is prone to commit mistakes. As the aphorism to err is human and is more a practical notion of human behavior than an abstract philosophy, the 3 Anil Kaushik LL unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine, therefore, considering the peculiar fact that the Ld. CIT(A) did not pass the order under challenge on merit, we for the just decision of the case and for the ends of justice, deem it appropriate to remand back the instant case to the file of the Ld. Commissioner for decision afresh on merits, while affording proper and reasonable opportunity of being heard to the Assessee.

In the result appeal filed by the Assessee stands allowed for statistical purposes.