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Anurag Birla, C-37, Hauz Khas, New Delhi-110016. Vs ACIT, Circle-24(1), New Delhi
May, 27th 2014
                    DELHI BENCH: `A' NEW DELHI


                         I.T.A .No.-3974/Del/2013
                     (ASSESSMENT YEAR- 2009-10)

        Anurag Birla,                       vs   ACIT,
        C-37, Hauz Khas,                         Circle-24(1),
        New Delhi-110016.                        New Delhi
        (APPELLANT)                              (RESPONDENT)

                  Appellant by        None
                  Respondent by       Y.Kakkar, DR


      This is an appeal filed by the assessee against the order dated 25.04.2013
passed by CIT(A)-XXIII, New Delhi pertaining to 2009-10 assessment years.
2.    However at the time of hearing no one was present on behalf of the assessee.
The appeal was passed over twice despite this neither anyone is present nor any
request for adjournment has been moved. The record shows that the notice was
sent to the assessee on 22.04.2014. The same has not come back 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. In the afore-
mentioned peculiar facts and circumstances, it can be safely presumed that      the
assessee is not serious in pursuing the present appeals.
3.    Rule 19 of the ITAT Rules, 1963 prescribes the conditions about
admissibility of appeal for hearing in following terms:-
                                              2                       I.T.A .No.-3974/Del/2013

      "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 (s) 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 :-
      "4.     A judicial body has certain inherent powers. Decisions are taken for
      the purpose of proper and expeditions 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
      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 present 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 prescribing 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. It
      may be stated here that the Tribunal has not passed any order on the basis
      of Rule 24 of the Tribunal Rules 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."

5.    Thus, the ITAT in the case of 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
                                         3                    I.T.A .No.-3974/Del/2013

same by giving proper address. Therefore, the appeal was held as inadmissible in
terms mentioned above.
6.    Respectfully following the order of ITAT in the case of Multiplan (India)
Pvt. Ltd. (supra), we hold the appeal to be unadmitted with a liberty to assessee to
move appropriate application and explaining the reasons for its non-appearance if
so advised and pray for a recall of the order and adjudication on merits. The said
order was pronounced on the date of hearing itself in the open Court.
7.    In the result the appeal of the assessee is dismissed in limine.
      The order is pronounced in the open court on 22th of May 2014.

      Sd/-                                                          Sd/-
(T.S.KAPOOR)                                                    (DIVA SINGH)
ACCOUNTANT MEMBER                                          JUDICIAL MEMBER

Dated: 22/05/2014
*Amit Kumar*

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