Sh. Abhishek Mohan Joshi, Mumbai V. ITO, New Delhi

ITA 2949/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7367 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 13-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO. - 2949 /DEL/201 3 (ASSESSMENT YEAR - 2007 - 08 ) ABHISHEK MOHAN JOSHI, C/O - P.S.PATANKAR & CO., CA,17/259, ADARSH NAGAR, VEER NARIMAN ROAD, NEW DELHI P AN - ADUPJ0632J (APPELLANT) VS ITO , WARD - 32(3), NEW DELHI (RESPONDENT) APPELLANT BY NONE RESPONDENT BY Y. KAKKAR, DR ORDER PER DIVA SINGH, JM TH IS IS AN APPEAL FILED BY THE AS SESSEE AGAINST THE ORDER DATED 2 8 . 0 2 .201 3 OF THE CIT (A) - XVII , NEW DELHI . HOWEVER AT THE TIME OF HEARING, N O ONE WAS PRESENT ON BEHALF OF THE ASSESSEE . THE APPEAL WAS PASSED OVER TWICE. EVEN I N THE THIRD ROUND ALSO, THE POSITION RE MAINED THE SAME AS NEITHER ANYONE WAS PRESENT NOR ANY REQUEST FOR ADJOURNMENT HAS BEEN PLACED BEFORE THE BENCH. THE RECORD SHOWS THAT NOTICE DATED 08.07.2014 WAS ISSUED TO THE ASSESSEE ON 10.07.2014 FIXING THE DATE OF HEARING AS 01.09.2014 . THE RECORD SHOWS THAT IT WAS SENT TO THE ADDRESS GIVEN IN COLUMN NO - 10 IN THE MEMO OF APPEAL FILED BY THE ASSESSEE . THE RECORD FURTHER SHOWS THAT THE HEARING WAS ADJOURNED ON 11.11.2013 ON ACCOUNT OF THE FACT THAT THE ASSESSEE WAS NOT REPRESENTED. IT IS FURTHER SEE N THAT CERTAIN DEFECTS HAVE BEEN POINTED OUT BY THE REGISTRY AT THE TIME OF FILING OF THE APPEAL WHICH HAVE NOT BEEN CURED TILL DATE BY THE ASSESSEE . IN THE CIRCUMSTANCE IT CA N BE SAFELY PRESUMED THAT THE ASSESSEE IS NOT SERIOUS IN PURSUING THE PRESENT APPEAL. RULE 19 OF 2 I.T.A .NO. - 2949 /DEL/201 3 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 (S) SHALL NOT BY ITSELF BE DEEMED TO MEAN THAT THE APPEAL HAS BEEN ADMITTED. 2. 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 TH E 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 SA ME 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 THA T 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 ADMISSIO N 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 . 3. IN THE CASE OF MULTIPLAN (IND IA) PVT. LTD. (SUPRA) IT WAS 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 3 I.T.A .NO. - 2949 /DEL/201 3 PROPER ADDRESS. THEREFORE, THE APPEAL WAS HE LD AS INADMISSIBLE IN TERMS MENTIONED ABOVE. 4. 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 DEFE CT 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. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISSED IN LIMINE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 01 ST OF SEPTEMBER 2014. SD/ - SD/ - ( T.S.KAPOOR ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 01 /0 9 /2014 *AMIT KUMAR* CO PY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI