M/s. Moti International Ltd., Kanpur v. ITO, Kanpur

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH LUCKNOW. BEFORE SHRI N.K.SAINI ACCOUNTANT MEMBER I.T.A.NO.57(LKW.)/2011 A.Y. : 2003-04 M/S. MOTI INTERNATIONAL LTD. VS. THE ITO -6(1) 123/709 FAZAL GANJ KANPUR. KANPUR. PAN AABCM3359C (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI P.K.BAJAJ SR.D.R. O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE CIT(A)-II KANPUR DATED 18.10.2010 RELATING TO ASSE SSMENT YEAR 2003-04. 2. THE ABOVE APPEAL WAS FIXED FOR HEARING BEFORE TH IS BENCH OF THE TRIBUNAL ON 22/02/2011. AT THE TIME OF HEARING NO BODY APPEARED ON BEHALF OF THE ASSESSEE. THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY REGISTERED POST BUT THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE. EVEN NO APPLICATION SEEKING ADJOURNMENT WAS FILED. THE LAWS AID THOSE WHO ARE VIGILANT NOT THOSE WHO SLEEP UPON THEIR RIGHTS. TH IS PRINCIPLE IS EMBODIED IN WELL KNOWN DICTUM 'VIGILANTIBUS ET NON DORMIENTIBU S JURA SUB VENIUNT'. CONSIDERING THE FACTS AND KEEPING IN VIEW THE PROVISIONS OF RULE 19(2) OF THE APPELLATE TRIBUNAL RULES AS WE RE CONSIDERED IN 38 ITD 320 (DEL) IN THE CASE OF CIT VS. MULTIPLAN INDIA LT D. I TREAT THIS APPEAL AS UNADMITTED. 2 3. SIMILAR VIEW HAS BEEN TAKEN BY HON'BLE M.P. HIG H 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 M ADE FAILS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEAR ING OF THE REFERENCE THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. 4. 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 T HERE WAS NOT ANY ASSISTANCE FROM THE ASSESSEE. 5. THEIR LORDSHIPS OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. B. N.BHATTACHARGEE AND ANOTHER 118 ITR 461 AT PAGE 477 -478 HELD THAT THE APPEAL DOES NOT MEAN MERE FILING OF THE MEMO OF AP PEAL BUT EFFECTIVELY PURSUING THE SAME. 6. SO BY RESPECTFULLY FOLLOWING THE VIEW TAKEN IN T HE CASES CITED (SUPRA) I DISMISS THIS APPEAL FILED BY THE ASSESSEE FOR NON PROSECUTION. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 22/02/201 1) SD. (N.K.SAINI) ACCOUNTANT MEMBER FEBRUARY 22ND 2011. 3 COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R. ITAT LUCKNOW. SRIVASTAVA.