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Income Tax Appellate Tribunal, KOLKATA BENCH ‘C’, KOLKATA
Before: Shri P. M. Jagtap, A.M. & Shri S.S.Viswanethra Ravi, J.M.)
ORDER Shri S.S.Viswanethra Ravi, J.M. This appeal is preferred by the Revenue against the order dated 04.11.2009 passed by the CIT(Appeals)-XII, Kolkata in Appeal No. 46/XII/DCIT,Cir-12/08-09 for the assessment year 2005-06 passed under section 143(3) of the I.T.Act.
At the time of hearing, nobody appeared on behalf of the Appellant Revenue today i.e., on 09.12.2015, despite the fact that the date of hearing on 09.12.2005 was informed to both the parties through Notice Board, when it was last fixed for hearing on 30.07.2015. It is, therefore, presumed that in spite of date of hearing being informed, the Revenue did not appear before the Bench on the date of hearing. On earlier several occasions also, the appeal M/s. J. J. Exporters Ltd. Assessment Year: 2005-06 was fixed for hearing but the Revenue either did not complete the procedure for filing appeal in right perspective or time and again sought for adjournment. This time also, the Revenue did not appear at the time of hearing nor even he sought for adjournment. It, therefore, appears that the Revenue 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 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.”
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.
M/s. J. J. Exporters Ltd. Assessment Year: 2005-06 6. So by respectfully following the view taken in the cases cited supra, we dismiss the appeal of the Revenue for non-prosecution.
In the result, the appeal filed by the Revenue is dismissed. Order Pronounced in the Open Court on 9th December, 2015.