2019 (4) TMI 2166 - AT - Income Tax

ITAT Jodhpur dismisses appeal for non-prosecution; reinstatement possible if justified u/r 24, ITAT Rules 1963.

M/s Jai International Versus The DCIT, Circle-1, Udaipur.

The ITAT Jodhpur dismissed the assessee's appeal for non-prosecution after the assessee failed to appear or seek an adjournment for the hearing on ... Non prosecution of appeal by assessee - HELD THAT:- 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 30.10.2018 but nobody was present on behalf of the assessee and the case was adjourned sine die. Later on, the case was fixed for today i.e. 30.04.2019. 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 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., [1991 (5) TMI 120 - ITAT DELHI-D] we treat this appeal as unadmitted. The Appellate Tribunal ITAT Jodhpur, comprising Vice President Shri N.K. Saini and Judicial Member Shri N.K. Choudhry, addressed an appeal by the assessee against an order from the Commissioner of Income Tax (Appeals), Udaipur, dated 03.10.2017. The hearing was scheduled for 30.04.2019, but the assessee was absent and had not sought an adjournment, indicating a lack of interest in prosecuting the matter. The Tribunal invoked the principle 'VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT,' emphasizing that the law aids those who are vigilant. Citing precedents such as CIT vs. Multiplan India Ltd. and Estate of Late Tukojirao Holkar vs. CWT, the Tribunal treated the appeal as unadmitted due to non-prosecution. The Tribunal also referenced the Supreme Court's stance in CIT vs. B. Bhattachargee & Another, underscoring that an appeal requires active pursuit, not just filing. Consequently, the appeal was dismissed for non-prosecution, with the provision that the assessee could apply to set aside the order under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963, by explaining their absence. The order was pronounced in court on 30.04.2019.