M.M.KUMAR, J. - (1.) THIS order shall dispose of IT Appeal Nos. 39 and 40 of 2005 as common questions of law and facts are involved. However, the facts are being referred from IT Appeal No. 39 of 2005.
(2.) THE assessee appellant has filed the instant appeal under s. 260A of the IT Act, 1961 (for brevity 'the Act') against asst. yr. 1993 -94, claiming that following substantial questions of law would arise for our determination : "(i) Whether in the facts and circumstances of the present case the action of the authorities below in denying the opportunity to the appellant/assessee to put forth his part of the case, is legally sustainable in the eyes of law ? (ii) Whether in the facts and circumstances of the present case the action of the authorities below in deciding the case of the assessee without going into the merits of the case, is legally sustainable in the eyes of law ? (iii) Whether the action of the assessing authorities in exercising their jurisdiction by acting merely on presumption is sustainable in law - 132(1) was conducted at residential as well as business premises of M/s Goel Oil and General Mill at different places. On the basis of seized material notice under s. 148 of the Act was issued as from the seized record it transpired that the assessee had made substantial investment in the purchases of shares and other movable assets. The AO after Smt. Seema Gupta of Rs. 1,25,000 and addition of account of low household withdrawal at Rs. 40,000. Assailing the order of the assessing authority, the assessee appellant filed an appeal before the CIT(A), Ludhiana. The CIT(A) observing that the case was fixed for 17 times on various dates but neither any written request nor any reply on behalf of the assessee appellant was filed. Thus, the CIT(A) concluded that the assessee appellant was not interested in pursuing the appeal. In this regard, the CIT(A) followed the principle as embodied in the well known dictum "vigilantbus non dormentibus, jura subveniunt". Further appeal of the assessee appellant filed before the Tribunal was also dismissed as under : "2.4 As per s. 250 of the Act, the CIT(A) shall fix the date and place of hearing and shall give notice of the same to the assessee and to the AO against whose order the appeal is preferred. The assessee either in person or by an Authorized Representative, has a right to be heard at the hearing of the appeal. 2.5 In the instant case, both these conditions have been complied with by the first appellate authority because in this case, the appeal was fixed for hearing 17 times and even on the last four dates of hearing, none put in appearance on behalf of the assessee nor any written request or reply was filed on behalf of the assessee, which means that proper opportunity of being heard has been allowed to the assessee and in case the assessee does not put in appearance before the first appellate authority nor moves an application giving justifiable reasons for adjournment, none else is to be blamed except the assessee. 2.6 From the record, it appears that the assessee has not filed any written request for adjournment before the CIT(A) on the last four dates of hearing, as mentioned in the order of the CIT(A). Even before us, the assessee has not produced any evidence to show that at any point of time, on the last four dates of hearing, as indicated in the order of the CIT(A), the assessee has ever filed any application for adjournment before the CIT(A)."
(3.) IT is thus obvious on the plain language of s. 250 of the Act that date and place of hearing was duly fixed. The assessee was also given notice along with notice to the AO. The assessee had ample opportunity to make his submissions by appearing in person or through Authorised Representative. Despite fixing the case for seventeen hearings, no one had put in appearance nor any justifiable reason for adjournment was given.;