ORDER

Per Dr. M. L. Meena, AM:

This Miscellaneous Application has been filed by the assessee against the order of the ITAT dated 07.03.2019 in ITA No. 142/Asr/2015 in respect of Assessment Year: 2010-11.

2. In the present case, first time, the appeal was adjudicated by the Tribunal vide order dated 27.07.2016, rejecting the appeal as un-admitted by applying CIT v. Multiplan India Ltd. reported in 38 ITD 320 (Del.). Again on the request of the appellant vide MA No. 22/Asr/2017, the appeal was restored vide Tribunal order dated 31.10.2017, however, the appellant assessee failed to avail the opportunities of hearing granted by the Tribunal by proper service of notice of hearing in as such as the same was sent by registered post on 14.02.2019 but returned un-served, and there has been no representation even on the earlier occasion, i.e., 06.09.2018 although the hearing of case was adjourned in the interest of justice so as to comply with the principle of audi alteram partem. Under those circumstances, the Tribunal was constrained to dismiss the assessee’s appeal in limine as un- admitted again and, in any case for want of prosecution by observing as under:

“3. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in the well known dictum “VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT’. The principle has been invoked in many a decision, as: Estate of Late Tukoji Rao Holkar v. CWT [1997] 223 ITR 480 (MP); CIT v. Multiplan India (P.) Ltd. [1991] 38 ITD 320 (Del), dismissing the appeals in limine for want of prosecution. Reference here may also be drawn to the decision in CIT v. B.N. Bhattachargee [1979] 118 ITR 461 (SC), wherein it stands clarified that preferring an appeal does not mean merely filing the appeal papers, but effectively pursuing it. The Apex Court has per its’ recent larger bench decision in Ram Siromani Tripathi & Ors. vs. State of UP (in Civil Appeal Nos. 9142-9144 of 2010 & CA No.6156/2012, dated 07.2.2019 (copy on record), dismissed the appeals in limine rejecting the application seeking adjournment on the ground that the counsel was not present in the Court but statedly out of station. The Apex Court while dismissing the appeals made it clear that it would not restore the appeals.

As afore-stated, there is no adjournment application in the instant case, with the assessee not responding to his counsel, much less contact him and brief him in the matter. The ld. CIT(A), the first appellate authority, before whom there was representation, has upon due consideration allowed part relief to the assessee. The appeal in the instant case is also time barred by 13 days. Under the circumstances, I am constrained to dismiss the assessee’s appeal in limine as un-admitted and, in any case, for want of prosecution. I decide accordingly.”

3. This is the second miscellaneous application of the same appellant assessee who has filed a miscellaneous application against the second order of the Tribunal for the same assessment year on the identical facts requesting restoration of appeal.

4. Per contra, the ld. DR has strong objection to the request of the appellant in restoration of the appeal for the second time though the appeal was dismissed in limine for want prosecution.

5. Heard both the sides, perused the record, impugned orders and the Tribunal orders. Admittedly, the appellant assessee has been non co- operative all the times in the proceedings before the Tribunal in the two rounds of the appeal which culminated into dismissing the appeals in limine for want of prosecution. We know that the law assists those who are vigilant and not those who sleep over their rights and in the present case, the appellant has been found sleeping, over his rights for the last 12 years to filing of the appeal passing through two rounds of the adjudication by the co-ordinate Amritsar Bench. The well known principle that “Vigilantibus, Non Dormentibus, Jura Subveniunt” has been invoked in many decis