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Rajiv Seth, A-113, Ground Floor, Defence Colony, New Delhi Vs JDIT, Circle-2(2), Intl. Taxation, New Delhi
August, 12th 2014
                    DELHI BENCH: `F' NEW DELHI


                         I.T.A .No.-2438/Del/2013
                     (ASSESSMENT YEAR- 2009-10)

        Rajiv Seth,                       vs    JDIT,
        A-113, Ground Floor,                    Circle-2(2), Intl. Taxation,
        Defence Colony, New Delhi               New Delhi
        (APPELLANT)                             (RESPONDENT)

                   Appellant by  None
                   Respondent by Sh. Manoj Kumar Chopra, Sr. DR


      This is an appeal filed by the assessee against the order dated 27.02.2013 of
the CIT(A)-XXIX, New Delhi pertaining to 2009-10 assessment year.
2.    However no one was present at the time of hearing. The appeal was passed
over twice. In the third round also, the position remained the same as neither
anyone was present nor any request for adjournment has been placed before the
Bench. The record shows that on the last date of hearing adjournment was moved
by the assessee and while granting adjournment it was indicated that the defects
pointed out by the Registry have not been cured by the assessee which needed to
be cured. The date of next hearing has been noted on the adjournment application,
despite this fact neither the defects are cured nor there is any representation. In the
afore-mentioned peculiar facts and circumstances, it can be safely presumed that
the assessee is not serious in pursuing the present appeal.              Rule 19 of
the ITAT Rules, 1963 prescribes the conditions about admissibility of appeal for
hearing in following terms:-
                                              2                       I.T.A .No.-2438/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."

3.    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." 4. 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.-2438/Del/2013 same by giving proper address. Therefore, the appeal was held as inadmissible in terms mentioned above.
5. 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 correct the defect whatsoever in the memo about its address to ensure a proper hearing of the appeal. The said order was pronounced on the date of hearing itself in the open Court. 6. In the result the appeal of the assessee is dismissed in limine. The order is pronounced in the open court on 11th of August 2014. Sd/- Sd/- (J.S.REDDY) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 11/08/2014 *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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