P.K. Builders, Ghaziabad V. DCIT, Ghaziabad

ITA 4380/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3166 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 10-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

1 ITA NO. 4380/DEL/2016 IN THE INCOME TAX APPELLA TE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI G. D. AGRAWAL, PRESIDE NT AND SHRI CHANDRA MOHAN GARG, JU DICIAL MEMBER I.T.A .NO. 4380/DEL/2 016 (A.Y 2012-13) P. K. BUILDERS PROP. PAWAN KUMAR TYAGI 1561, SECTOR-5, VASUNDHARA GHAZIABAD ACGPT1302A (APPELLANT) VS DCIT CIRCLE-2 GHAZIABAD (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. ATIQ AHMAD, SR. DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE HAS BEEN FILED AGAINST THE ORDER OF THE CIT(A)-GHAZIABAD, 10.05.2016 PASSED IN FIRST APPEAL NO. 128/2015- 16/GZB FOR AY 2012-13. 2. TODAY I.E. ON 12.12.2017 WHEN THE CASE WAS CALL ED ON BOARD, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY REQ UEST FOR ADJOURNMENT HAS BEEN FILED BEFORE THE TRIBUNAL. ON EARLIER DATES DATE OF HEARING 12.12.2017 DATE OF PRONOUNCEMENT 12.12.2017 2 ITA NO. 4380/DEL/2016 ALSO, THE MATTER WAS ADJOURNED ON THE WRITTEN REQUE ST OF THE ASSESSEES COUNSEL. A NOTICE OF HEARING SENT FIXING THE HEARING FOR . SENT TO THE ASSESSEE BY REGISTERED POST AT T HE ADDRESS FURNISHED BY THE ASSESSEE IN COLUMN NO. 10 OF FORM NO. 36 HAS NOT BEEN RETURNED UNSERVED. THUS, IN VIEW OF ORDER 5 RU LE 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 FOLLOW ING TERMS: '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 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 BEE N ADMITTED. ' 3 ITA NO. 4380/DEL/2016 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 ADMISSIBILITY 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 DIS POSAL OF THE APPEALS IN PRESENT CLIMATE OF MOUNTING ARREA RS PARTLY DUE TO APPEALS BEING FILED WITHOUT PROPER 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 APP ELLATE TRIBUNAL RULES SUPPORT SUCH ACTION BY STATING THAT MERE ISSUE OF NOTICE COULD NOT BY ITSELF MEAN THAT APPEA L HAD 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 CLERK IN REGISTRY VERIFIES WHETHER ACCOMPANYING DOCUMENTS ARE RECEIVED OR NOT AND IF N OT A MEMO IS ISSUED CALLING FOR THE PAPERS WHICH ARE ALS O REQUIRED TO BE ATTACHED TO APPEAL MEMO. BUT AT NO S TAGE 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 A PPEAL 4 ITA NO. 4380/DEL/2016 UNDER SECTION 253 OF THE ACT. THOSE POINTS IF ARISI NG 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 APPEAL ON MERITS AFTER HEARING THE RESPONDENT. IT MAY BE S TATED HERE THAT THE TRIBUNAL HAS NOT PASSED ANY ORDER ON THE B ASIS OF RULE 24 OF THE TRIBUNAL RIDES WHICH PRESUPPOSES ADM ISSION OF APPEAL UNDER SECTION 253 OF THE ACT BESIDES THERE W AS 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 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 5 ITA NO. 4380/DEL/2016 ABOVE. 5. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADHY A PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480) WHEREIN IT HAS BEEN HELD AS UNDER: 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. 6. SIMILARLY, HONBLE 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 AB SENT AND THERE 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 PAG E 477-478) HELD THAT THE APPEAL DOES NOT MEAN, MERE FILING OF THE MEMO OF APPEAL BUT EFFECTIVELY PURSUING THE SAME. 6 ITA NO. 4380/DEL/2016 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 TER MS, THE APPEAL IS TECHNICALLY DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 12.12.2 017 SD/- SD/- (G. D. AGRAWAL) (C. M GARG) PRESIDENT JUDICIAL MEMBER DATED: 12/12/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR 7 ITA NO. 4380/DEL/2016 ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 12.10.2017 PS 2. DRAFT PLACED BEFORE AUTHOR 13.10.2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 18.12.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 18 .12.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 8 ITA NO. 4380/DEL/2016