SWATI KUSHWAH,INDORE vs. INCOME TAX OFFICER WARD 3 (5) INDORE , INDORE
No AI summary yet for this case.
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Per Vijay Pal Rao, JM :
This appeal by assessee is directed against the order dated 27.02.2024 of the Commissioner of Income Tax (Appeal) National Faceless Appeal Centre (NFAC) Delhi, for A.Y.2017-18.
None has appeared on behalf of the assessee when this appeal was called for hearing. It transpires from the record that the last date of hearing i.e. 13th August 2024 the ld. Counsel for the assessee filed an application for adjournment of hearing and accordingly the hearing was adjourned to 9th September 2024 i.e.
ITANo.301/Ind/2024 Swati Kushwah today at the joint request. Despite the hearing was adjourned at the request of the parties non has appeared on behalf of the assessee. Accordingly the Bench proposes to hear and disposed of this appeal ex-parte.
We have heard Ld. DR and carefully perused the impugned order of CIT(A). The CIT(A) has dismissed the appeal of the assessee for non-prosecution in para 5 to 5.1 as under:
“Decision It is found from records that hearing notices were issued to the appellant as per the Table below:
Date of notice Date of hearing Result fixed as per the notice
12/3/2020 18/3/2020 An adjournment was received. No details furnished
28/12/2020 12/1/2021 No details furnished nor any petition for adjournment was received
25/8/2021 01/09/2021 No details furnished nor any petition for adjournment was received.
The conduct of the Appellant, as inferred from the aforesaid table, evidences that the Appellant is not interested in prosecuting the Appeal. 5.1. The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in the well-known latin
Page 2 of 5
ITANo.301/Ind/2024 Swati Kushwah dictum, "VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT". The conduct of the Appellant, as inferred from the aforesaid table, evidences that the Appellant fails on this principle of equity. Even the Hon'ble Courts, in various pronouncements, have frowned upon the Appellants who file appeals but thereafter do not take any further interest in prosecuting those appeals. 1. The Hon'ble Income Tax Appellate Tribunal Kolkata in the case of Pradeep Kumar Jhawar Kolkata vs. DCIT-CCXXI (15 March, 2016) (ITA Nos. 450/Kol/2013 for Asstt. Year: 2006-07) dismissed the appeal of the Appellant for non-prosecution. 1. The Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukojirao Holkar vs. CWT (223 ITR 480) 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." 1. Similarly, the 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 no assistance from the assessee. Their Lordships of Hon'ble Supreme Court in the case of CIT vs. B. Bhattacharjee & Another (118 ITR 461 at page 477-478) held that appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same. In the judgment, their Lordships averred as follows: …This turns on the meaning of the words "preferred an appeal". "Preferred" is a word of dual import. Its semantics depend on the scheme and the context; its import must help, not hamper, the object of the enactment even if liberty with language may be necessary. There is good ground to think that an appeal means an effective appeal. An appeal withdrawn is an appeal non est as judicial thinking suggests. Black's Law Dictionary gives the following meaning: 'PREFER: To bring before; to prosecute; to try to proceed with'. Thus, preferring an indictment signifies prosecuting or trying an indictment. It means to give advantage, priority, or privilege; to select for first payment, as to prefer one creditor over others. Thus, it may mean 'prosecute' or 'effectively Page 3 of 5
ITANo.301/Ind/2024 Swati Kushwah pursue a proceeding or merely institute it. Purposefully interpreted, preferring an appeal means more than formally filing it but effectively pursuing it..................." In view of the above, it is clear that the Appellant is not aggrieved with the assessment order impugned herein and is not interested in prosecuting the same. Accordingly, the additions/disallowance as challenged in the Grounds of Appeal and in the Appeal Memo are hereby confirmed.”. 4. Thus, the notices as mentioned in para 5 of the impugned order were issued during the Covid-19 pandemic period whereas the appeal has been decided after three years from the last date of hearing without issuing any fresh notice to the assessee by the CIT(A). Further the CIT(A) has not decided the grounds of appeal on merits but same was dismissed in limine for non-prosecution. Hence, the impugned order passed by the CIT(A) is not in accordance with the provisions 250(6) of the Act. We further note that the AO has also passed ex-parte order when there was no compliance on behalf of the assessee to the notices issued u/s 142(1) and consequently the assessment was framed as best judgment assessment. Ld. DR has fairely submitted that since both the orders of the AO as well as the CIT(A) are ex-parte therefore, the matter may be remanded to the jurisdictional AO for fresh adjudication after considering details and supporting evidences if any to be filed by the assesse.
Having regard to the fact that the CIT(A) has dismissed the appeal of the assesse for non-prosecution and that too without giving an effective opportunity of hearing to the assessee before passing impugned order therefore, the impugned order of the CIT(A) Page 4 of 5
ITANo.301/Ind/2024 Swati Kushwah is set aside. Since assessment order is also passed ex-parte therefore, the matter is remanded to the record of the AO for fresh adjudication after giving one more opportunity of hearing to the assesse to produce the relevant details as well as supporting evidences.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 10.09.2024.
Sd/- Sd/- (B.M. BIYANI) (VIJAY PAL RAO) Accountant Member Judicial Member
Indore,_ 10.09.2024 Patel/Sr. PS
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
Page 5 of 5
