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M/s Gayatri Sewa Sansthan 155,G.T Road, Panchwati, Ghaziabad (UP). vs. Deputy Commissioner of Income Tax, Circle-1, Ghaziabad.
January, 03rd 2019
                                                                 ITA No.- 1927/Del/2016.
                                                              M/s Gayatri Sewa Sansthan.

             IN THE INCOME TAX APPELLATE TRIBUNAL
                  (DELHI BENCH: `A': NEW DELHI)

      BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
                          AND
   SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER

                          ITA No:- 1927/Del/2016
                        (Assessment Year: 2012-13)

M/s Gayatri Sewa Sansthan                    Deputy Commissioner              of
155,G.T Road, Panchwati,                 Vs. Income Tax,
Ghaziabad (UP).                              Circle-1,
                                             Ghaziabad.
PAN No:   AAATG1960H
APPELLANT                                      RESPONDENT

             Assessee by          : None
             Revenue by           : Sh. Sridhar Dora, Sr. DR


                                  ORDER


PER: ANADEE NATH MISSHRA, AM


      This appeal by the Assessee is filed against the order of Learned Commissioner

of Income Tax (Appeals), Aligarh, dated 10.02.2016 for Assessment Year 2012-13. At

the time of hearing before us on 02-01-19 no one was present on behalf of the

assessee. As the assessee has chosen to be neither present nor represented, it can be

concluded that the assessee is not serious in pursuing the appeal filed. Therefore, in




                                      Page 1 of 5
                                                                            ITA No.- 1927/Del/2016.
                                                                         M/s Gayatri Sewa Sansthan.

our view, the appeal filed by the assessee is liable to be dismissed in limine for non-

prosecution in view of the following legal position and judicial precedents:-


       A. 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 (I) shall not by. itself be
            deemed to mean that the appeal has been admitted."

       B. 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:

             "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).
             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.








                                           Page 2 of 5
                                                                         ITA No.- 1927/Del/2016.
                                                                      M/s Gayatri Sewa Sansthan.

             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. Hon'ble Madhya Pradesh High Court in the case of Estate of Late
            Tukojirao Holkar vs. CWT (223 ITR 480) held as under:

             "if the party, at whose instance the reference is made, fails to appear at
             the hearing, or foils 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."

      C. 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.

      D. Their Lordships of Hon'ble Supreme Court in the case of CIT vs.B.
          Bhattachargee and 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.

(2)   Respectfully following the order of ITAT in the case of Multiplan (India) Pvt. Ltd,

(supra) and in view of the legal position and judicial precedents as mentioned earlier,

we dismiss the appeal of the assessee in limine for non-prosecution. However, we wish

to clarify that the assessee will be at liberty to approach ITAT for recall of this order

and for restoration of this appeal under relevant provisions of law if the assessee is




                                         Page 3 of 5
                                                                       ITA No.- 1927/Del/2016.
                                                                    M/s Gayatri Sewa Sansthan.

able to show that there was reasonable cause for non representation on the part of the

assessee on the date of hearing.


(3)     In the result, the appeal filed by the Assessee is dismissed in limine.

         Order pronounced in the open court on 2nd day of January, 2019.


            Sd/-                                                Sd/-
       (H.S. SIDHU)                                     (ANADEE NATH MISSHRA)
      JUDICIAL MEMBER                                    ACCOUNTANT MEMBER

Dated: 02.01.2019
Pooja/-

Copy    forwarded to:
  1.    Appellant
  2.    Respondent
  3.    CIT
  4.    CIT(Appeals)
  5.    DR: ITAT




                                                           ASSISTANT REGISTRAR

                                                                ITAT NEW DELHI




                                          Page 4 of 5
                                                        ITA No.- 1927/Del/2016.
                                                     M/s Gayatri Sewa Sansthan.




Date of dictation

Date on which the typed draft is placed before the
dictating Member
Date on which the typed draft is placed before the
Other Member

Date on which the approved draft comes to the Sr.
PS/PS

Date on which the fair order is placed before the
Dictating Member for pronouncement

Date on which the fair order comes back to the Sr.
PS/PS
Date on which the final order is uploaded on the
website of ITAT

Date on which the file goes to the Bench Clerk

Date on which the file goes to the Head Clerk

The date on which the file goes to the Assistant
Registrar for signature on the order

Date of dispatch of the Order




                                Page 5 of 5

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