M/s Jardan Ban Ali, V. The I T O 5 (2),

ITA 166/IND/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2878 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 02-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K KARAN

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER ITA NO.166/IND/2009 AY: 2004-05 M/S. JARDAR BAN ALI, SUBHASH MARG, SANAWAD (PAN AAAFJ 9618 D) ..APPELLANT V/S. ITO-5(2), INDORE ..RESPONDENT ASSESSEE BY : NONE DEPARTMENT BY : SHRI V.K. KARAN, SR. DR ORDER PER BENCH THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-II, INDORE, DATED 16.12.2008 FOR THE AY 2004-05 ON THE GROUNDS AS DETAILED IN THE GROUNDS OF APPEAL. DURING HEARING OF THIS AP PEAL, NOBODY IS PRESENT FOR THE ASSESSEE WHEREAS SHRI V.K. KARAN, L D. SR. DR IS PRESENT FOR THE REVENUE. THIS APPEAL WAS FILED BY THE ASSESSEE ON 2.4.2009 AS IS EVIDENT FROM ORDER SHEET ENTRY OF EVEN DATE. THE APPEAL WAS FIXED FOR HEARING FOR TODAY I.E. 5.5.2010 FOR WHICH REGISTERED NOTICE OF HEARING WAS SENT TO 2 THE ASSESSEE ON THE ADDRESS AS PROVIDED IN FORM NO. 36. THE ASSESSEE NEITHER PRESENTED ITSELF NOR MOVED ANY ADJOURNMENT P ETITION. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE ITS A PPEAL, THEREFORE, IT CANNOT BE KEPT PENDING ADJUDICATION FOR INDEFINITE P ERIOD. MERE FILING OF APPEAL IS NOT ENOUGH RATHER IT REQUIRES EFFECTIVE P ROSECUTION ALSO. THE ASSESSEE HAS ALSO NOT FILED ANY INFORMATION WITH TH E REGISTRY FOR HIS NON- APPEARANCE. IN VIEW OF THIS FACT, WE ARE OF THE VIE W THAT THE APPEAL OF THE ASSESSEE IS LIABLE FOR DISMISSAL. OUR VIEW IS S UPPORTED BY THE FOLLOWING JUDICIAL PRONOUNCEMENTS: I) IN THE CASE OF CIT V. B.N. BHATTACHARGEE AND ANOTHER, REPORTED IN 118 ITR 461 (RELEVANT PAGES 477 AND 478) WHEREIN THEIR LORDSHIPS HAVE HELD THAT: THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPE AL BUT EFFECTIVELY PURSUING IT. II) IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR V. CW T, 223 ITR 480 (M.P.) WHILE DISMISSING THE REFERENCE MADE AT THE INSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN THEIR ORDER: IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, 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 REFERENCE. 3 III) IN THE CASE OF CIT V. MULTIPLAN INDIA LTD., 38 ITD 320 (DEL), THE APPEAL FILED BY THE REVENUE BEFORE THE TRIBUNAL , WHICH WAS FIXED FOR HEARING. BUT ON THE DATE OF HEARING, NOBODY REPRESENTED THE REVENUE/APPELLANT NOR ANY COMMUNICA TION FOR ADJOURNMENT WAS RECEIVED. THERE WAS NO COMMUNIC ATION OR INFORMATION AS TO WHY THE REVENUE CHOSE TO REMAI N ABSENT ON DATE. THE TRIBUNAL ON THE BASIS OF INHERENT POW ERS, TREATED THE APPEAL FILED BY THE REVENUE AS UNADMITT ED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED FOR NON-PROSECUTION. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED SR. DR ON 5.5.2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5.5.2010 !VYAS! COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE 4