Sh. Jagdish, Noida V. ITO, Noida

ITA 1552/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7159 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 3
• Next Hearing Date: 13-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 18-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A SREENIVASA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3: NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 1552/DEL /2015 ASSESSMENT YEAR: 2008-09 JAGDISH, 173, CHAUDA SADATPUR, SECTOR-22, NOIDA PAN AIWPJ1193M VS. ITO WARD-2 NOIDA. (APPELL ANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI A. SREENIVASA RAO, SR. DR DATE OF HEARING : 13.07.2016 DATE OF PRONOUNCEMENT: 13.07.2016 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A) NOIDA DATED 19/05/2014 FOR A.Y 2008-09. 2. ON 13.07.2016, 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. A NOTICE OF HEA RING SENT FIXING THE HEARING FOR 13.07.2016 SENT TO THE ASSESSEE BY REGI STERED POST AT THE ADDRESS FURNISHED BY THE ASSESSEE IN COLUMN NO. 10 OF FORM NO. 36 HAS 2 ITA NO. 1552/ DEL/2015 2 NOT BEEN RETURNED UNSERVED. THUS, IN VIEW OF ORDER 5 RULE 19A OF THE CPC READ WITH SECTION 282 OF THE INCOME-TAX ACT, 19 61, THE SERVICE OF NOTICE IS DEEMED SUFFICIENT ON THE ASSESSEE. 3. RULE 19 OF THE ITAT RULES, 1963 PRESCRIBES TH E CONDITIONS ABOUT ADMISSIBILITY OF APPEAL FOR HEARING IN FOLLOWING TE RMS: '19(1) THE TRIBUNAL SHALL NOTIFY TO THE PARTIES SPE CIFYING THE DATE AND PLACE OF HEARING OF THE APPEAL AND SEN D A COPY OF THE MEMORANDUM OF APPEAL TO THE RESPONDENT EITHE R 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 (INDI A) PVT. LTD. 38 ITD 320 (DEL.) HAD OCCASION TO CONSIDER THE ASPECT OF A DMISSIBILITY OF APPEAL FOR HEARING BY OBSERVING AS UNDER: '4. A JUDICIAL BODY HAS CERTAIN INHERENT POWERS. DE CISIONS ARE TAKEN FOR THE PURPOSE OF PROPER AND EXPEDITIOUS DISPOSAL OF THE APPEALS IN PRESENT CLIMATE OF MOUNT ING ARREARS PARTLY DUE TO APPEALS BEING FILED WITHOUT P ROPER APPLICATION OF MIND TO FACTS AND LAW AND ALSO AT TI MES FOR ALTOGETHER EXTRANEOUS CONSIDERATIONS. THEREFORE, ON THE BASIS OF INHERENT POWERS THE TRIBUNAL TREATED THE A PPEAL AS UNADMITTED. THE PROVISIONS OF RULE 19 OF THE APPELL ATE TRIBUNAL RULES SUPPORT SUCH ACTION BY STATING THAT MERE ISSUE OF NOTICE COULD NOT BY ITSELF MEAN THAT APPEA L HAD 3 ITA NO. 1552/ DEL/2015 3 BEEN ADMITTED. THIS RULE ONLY CLARIFIED THE POSITIO N. THERE IS JUSTIFICATION FOR RULE 19(2). WHEN THE APPEAL IS PRESENTED THE SAME IS ACCEPTED. THEREAFTER THE CONCERNED CLER K IN REGISTRY VERIFIES WHETHER ACCOMPANYING DOCUMENTS AR E RECEIVED OR NOT AND IF NOT A MEMO IS ISSUED CALLING FOR THE PAPERS WHICH ARE ALSO REQUIRED TO BE ATTACHED TO AP PEAL 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 I T 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 ACCOR DING TO US, IS THE SIGNIFICANCE OF RULE 19(2). 5. IT WAS SUBMITTED AT THE TIME OF HEARING OF THE R EFERENCE APPLICATION THAT THE LANGUAGE OF RULE 24 OF THE APP ELLATE TRIBUNAL RULES REQUIRED THE TRIBUNAL TO DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT. IT M AY BE STATED HERE THAT THE TRIBUNAL HAS NOT PASSED ANY OR DER ON THE BASIS OF RULE 24 OF THE TRIBUNAL RIDES WHICH PRESUPPOSES ADMISSION OF APPEAL UNDER SECTION 253 O F 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. L TD. (SUPRA) HAS HELD THAT ISSUANCE OF NOTICE UNDER RULE 19 ITSELF DOES N OT MAKE THE APPEAL ADMISSIBLE. NON-ATTENDANCE MAKES THE APPEAL DEFECTI VE AND THE ASSESSEE HAS TO CORRECT THE SAME BY GIVING PROPER A DDRESS. THEREFORE, THE APPEAL WAS HELD AS INADMISSIBLE IN TERMS MENTIO NED ABOVE. 4 ITA NO. 1552/ DEL/2015 4 5. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADHY A PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKA R VS. CWT (223 ITR 480) WHEREIN IT HAS BEEN HELD AS UNDER: 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 HEAR ING OF THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REF ERENCE. 6. SIMILARLY, HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495) RET URNED THE REFERENCE UNANSWERED SINCE THE ASSESSEE REMAINED ABSENT AND T HERE WAS NOT ANY ASSISTANCE FROM THE ASSESSEE. 7. THEIR LORDSHIPS OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. B. BHATTACHARGEE & ANOTHER (118 ITR 461 AT PAGE 47 7-478) HELD THAT THE APPEAL DOES NOT MEAN, MERE FILING OF THE MEMO O F 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 APPL ICATION AND CORRECT THE DEFECT WHATSOEVER IN THE MEMO ABOUT ITS ADDRESS TO ENSURE A PROPER HEARING OF THE APPEAL. IN THESE TERMS, THE A PPEAL IS TECHNICALLY DISMISSED. 5 ITA NO. 1552/ DEL/2015 5 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 13 TH JULY, 2016. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 13 TH JULY, 2016. * VEENA * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR