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
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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.
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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
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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
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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
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