M/s. Elel Hotels & Investments Ltd., Mumbai V. ACIT, New Delhi

ITA 1625/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3506 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 29-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: C: NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 1625/DEL/2016 (ASSESSMENT YEAR: 2007-08) ELEL HOTELS & INVESTMENTS LTD. HOTEL SEA ROCK, BAND STAND, BJ ROAD, BANDRA WEST MUMBAI MUMBAI VS. A CIT, CENTRAL CIRCLE- 3, NEW DELHI. PAN NO: AAACE2846D APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : SMT. APARNA KARAN, CIT(DR) ORDER PER: ANADEE NATH MISSHRA, AM THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE OR DER OF LD. CIT(A)-23, NEW DELHI, DATED 04.02.2016 FOR ASSESSMENT YEAR 2007-08 . AT THE TIME OF HEARING BEFORE US NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. AS TH E ASSESSEE HAS CHOSEN TO BE NEITHER PRESENT NOR REPRESENTED, IT CAN BE CONCLUDE D THAT THE ASSESSEE IS NOT SERIOUS IN PURSUING THE APPEAL FILED. THEREFORE, IN OUR VIEW, THE APPEAL FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED IN LIMINE FOR NON-PROSECUTIO N IN VIEW OF THE FOLLOWING LEGAL POSITION AND JUDICIAL PRECEDENTS:- A. RULE 19 OF THE ITAT RULES, 1963 PRESCRIBES THE COND ITIONS ABOUT ITA NO.- 1625/DEL/2016 ELEL HOTELS & INVESTMENTS LTD. PAGE 2 OF 4 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 SEND A COPY OF T HE 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) P VT. LTD. 38 ITD 320 (DEL.) HAD OCCASION TO CONSIDER THE ASPECT OF-ADMIS SIBILITY OF APPEAL FOR HEARING BY OBSERVING AS UNDER: '4. A JUDICIAL BODY HAS CERTAIN INHERENT POWERS. DECISION S ARE .TAKEN FOR THE PURPOSE OF PROPER AND .EXPEDITIOUS DISPOSAL OF THE APPEALS IN PRESENT CLIMATE-OF MOUNTING ARREARS PARTLY DUE T O APPEALS BEING FILED WITHOUT PROPER APPLICATION OF MIND TO FACTS A ND LAW AND ALSO AT TIMES FOR ALTOGETHER EXTRANEOUS CONSIDERATIONS. THE REFORE, 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 ISSU E OF NOTICE COULD NOT BY ITSELF MEAN THAT APPEAL HAD BEEN ADMITTED. T HIS RULE ONLY CLARIFIED THE POSITION. THERE IS JUSTIFICATION FOR RULE 19(2). WHEN THE APPEAL IS PRESENTED THE SAME IS ACCEPTED. THEREAFTE R THE CONCERNED CLERK IN REGISTRY VERIFIES WHETHER ACCOMPANYING DOC UMENTS ARE RECEIVED OR NOT AND IF NOT A MEMO IS ISSUED CALLING FOR THE PAPERS WHICH ARE ALSO REQUIRED TO BE ATTACHED TO APPEAL ME MO. BUT AT NO STAGE USUALLY THE SCRUTINY IS MADE ON POINTS WHETHE R THE APPEAL MEMO AND CONTENTS REALLY CONFORM TO VARIOUS APPELLA TE 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 R EFERENCE APPLICATION THAT THE LANGUAGE OF RULE 24 OF THE APP ELLATE TRIBUNAL RULES REQUIRED THE TRIBUNAL TO DISPOSE OF THE APPEA L 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 RE SPONDENT SINCE NONE COULD BE NOTIFIED BECAUSE OF INCORRECT ADDRESS GIVEN BY THE APPELLANT AND PROPER PARTICULARS NOT FURNISHED SO F AR .' ITA NO.- 1625/DEL/2016 ELEL HOTELS & INVESTMENTS LTD. PAGE 3 OF 4 THUS, THE ITAT IN THE CASE MULTIPLAN (INDIA) PVT. L TD. (SUPRA) HAS HELD THAT ISSUANCE OF NOTICE UNDER RULE 19 ITSELF D OES NOT MAKE THE APPEAL ADMISSIBLE. NON-ATTENDANCE MAKES THE APPEAL DEFECTIVE AND THE ASSESSEE HAS TO CORRECT THE SAME BY GIVING PROP ER ADDRESS. THEREFORE, THE APPEAL WAS HELD AS INADMISSIBLE IN T ERMS 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 UNDE R: 'IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FOILS IN TAKING STEPS, FO R PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFE RENCE, 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 CAS E 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 AP PEAL 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 JUDIC IAL 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 P ROVISIONS OF LAW IF THE ASSESSEE IS ABLE TO SHOW THAT THERE WAS REASONABLE CAUSE FOR NO N 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. ITA NO.- 1625/DEL/2016 ELEL HOTELS & INVESTMENTS LTD. PAGE 4 OF 4 ORDER PRONOUNCED IN THE OPEN COURT ON 20.02.2019. SD- SD- (KULDIP SINGH) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20.02.2019 BIDHAN COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 19.02.19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.02.19 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