MOHINDER SINGH,NEW DELHI vs. ITO, WARD- 53(4), NEW DELHI

During the course of hearing nobody was present on behalf of the assessee neither any adjournment was sought. Earlier this case was fixed for hearing on 19.07.2018 but nobody was present on behalf of the assessee and the case was adjourned for today i.e. 01.10.2018. The notice of hearing was sent to the assessee at the address mentioned in Form No. 36/CIT(A)’s order which has not yet been returned back by the Postal Authority. It, therefore, appears that the assessee is not interested to prosecute the matter.

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 2 Mohinder Singh 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.

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.

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.

So, respectfully by following the view taken in the cases cited supra, I dismiss the appeal for non-prosecution. The assessee is at liberty to request for setting aside this order by moving an application as per the proviso to Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 and explaining the reasons for its non-appearance.