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Shri Mahesh Chandra Agarwal A-1, UNESCO Apartments 55, I.P. Extension Delhi 110 092 Vs. The A.C.I.T Circle 36(1) New Delhi
December, 14th 2015
                  IN THE INCOME TAX APPELLATE TRIBUNAL
                        DELHI BENCH: `E': NEW DELHI

                BEFORE SHRI G.D. AGARWAL, VICE PRESIDENT
                      SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER

                          ITA No. 1064/Del /2010
                         Assessment Year: 2006-07

Shri Mahesh Chandra Agarwal                Vs.         The A.C.I.T
A-1, UNESCO Apartments                                 Circle 36(1)
55, I.P. Extension                                     New Delhi
Delhi ­ 110 092

PAN : AAGPA 1603 D

[Appellant]                                            [Respondent]

                  Date of Hearing       : 07.12.2015
                  Date of Pronouncement : 09.12.2015

                Appellant by :    None
                Respondent by :   Shri P. Dam Kanunjna, Sr. Dr


                                  ORDER


PER CHANDRA MOHAN GARG, JUDICIAL MEMBER


      This appeal by the assessee has been filed against the order of the

CIT(A)-XXVII,    New Delhi dated 27.10.2009 passed in first appeal No.

66/2008-09 for AY 2006-07.



2.    Today i.e. on 09.11.2015 when the case was called on board,

none appeared on behalf of the assessee nor any request for

adjournment has been filed before the Tribunal. On earlier dates also,
                                    2
                                                   ITA No. 1064/Del/2010


the matter was adjourned on the written request of the assessee's

counsel. A notice of hearing sent fixing the hearing for 08.12.2015

sent to the assessee by Registered Post at the address furnished by

the assessee in column no. 10 of form no. 36 has not been returned

unserved. Thus, in view of Order 5 Rule 19A of the CPC read with

section 282 of the Income-tax Act, 1961, the service of notice is

deemed sufficient on the assessee.



3.   Rule 19 of the ITAT Rules, 1963 prescribes the conditions about

admissibility of appeal for hearing in following terms:


     "19(1) The Tribunal shall notify to the parties specifying
     the date and place of hearing of the appeal and send a
     copy of the memorandum of appeal to the respondent
     either before or with such notice.

     (2) The issue of the notice referred to in sub-rule (1) shall
     not by itself be deemed to mean that the appeal has been
     admitted. "




4.   The ITAT in the case of CIT Vs. Multiplan (India) Pvt. Ltd. 38 ITD

320 (Del.) had occasion to consider the aspect of admissibility of

appeal for hearing by observing as under:



                                    2
                               3
                                           ITA No. 1064/Del/2010

"4. A judicial body has certain inherent powers. Decisions
are taken for the purpose of proper and expeditious
disposal of the appeals in present climate of mounting
arrears partly due to appeals being filed without proper
application of mind to facts and law and also at times for
altogether extraneous considerations. Therefore, on the
basis of inherent powers the Tribunal treated the appeal
as unadmitted. The provisions of Rule 19 of the Appellate
Tribunal Rules support such action by stating that mere
issue of notice could not by itself mean that appeal had
been admitted. This rule only clarified the position. There
is justification for rule 19(2). When the appeal is
presented the same is accepted. Thereafter the concerned
Clerk in registry verifies whether accompanying documents
are received or not and if not a memo is issued calling for
the papers which are also required to be attached to
appeal memo. But at no stage usually the scrutiny is made
on points whether the appeal memo and contents really
conform to various Appellate Tribunal Rules or is it a
legally valid appeal under section 253 of the Act. Those
points if arising can be considered only at a time of
hearing.




And that is why the rule prescribes that mere issue of
notice does not mean appeal is admitted. This according to
us, is the Significance of rule 19(2).




                               3
                                   4
                                                 ITA No. 1064/Del/2010

     5. It was submitted at the time of hearing of the
     Reference Application that the language of Rule 24 of the
     Appellate Tribunal Rules required the Tribunal to dispose
     of the appeal on merits after hearing the respondent. It
     may be stated here that the Tribunal has not passed any
     order on the basis of Rule 24 of the Tribunal Rides which
     presupposes admission of appeal under section 253 of the
     Act besides there was no question of hearing the
     respondent since none could be notified because of
     incorrect address given by the appellant and proper
     particulars not furnished so far. "




Thus, the ITAT in the case Multiplan (India) Pvt. Ltd. (supra) has held

that issuance of notice under Rule 19 itself does not make the appeal

admissible. Non-attendance makes the appeal defective and the

assessee has to correct the same by giving proper address. Therefore,

the appeal was held as inadmissible in terms mentioned above.




5.   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:




                                   4
                                  5
                                                 ITA No. 1064/Del/2010

     "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."


6.    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 there was not any

assistance from the assessee.






7.   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.




8.   Respectfully following the order of ITAT in the case of Multiplan

(India) Pvt. Ltd. (supra), the appeal is dismissed for non prosecution

with a liberty to assessee to move appropriate application and correct

the defect whatsoever in the memo about its address to ensure a

proper hearing of the appeal. In these terms, the appeal is technically

dismissed.



                                  5
                                   6
                                                 ITA No. 1064/Del/2010

9.     In the result, the appeal of the assessee is dismissed.

       The decision is pronounced in the open court on 09.12.2015.


          Sd/-                                         Sd/-

      (G.D. AGARWAL)                                (C.M. GARG)
      VICE-PRESIDENT                              JUDICIAL MEMBER

Dated: 09th December, 2015

VL/


Copy forwarded to:

1.     Appellant
2.     Respondent
3.     CIT
4.     CIT(A)
5.     DR
                                                          Asst. Registrar,
                                                         ITAT, New Delhi




                                   6

 
 
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