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
|
