Rhydburg Pharmaceuticals Ltd., New Delhi V. ACIT, New Delhi

ITA 5161/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69395 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 28-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 05-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEEK KUMAR

Judgement Text

ITA NO. 5161/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 51 61 /DEL/201 2 A.Y. : 2008-2009 M/S RHYDBURG PHARMACEUTICALS LTD., 191M A-12/13, ANSAL BUILDING, MUKERJEE NAGAR, DELHI 110 009. (PAN: AAACR4453M) VS. ASSTT. C.I.T., CIRCLE 15(1), NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SH. VIVEEK KUMAR, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS IS ASSESSEES APPEAL AGAINST LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVIII, NEW DELHIS ORDER DATED 30.7.2012 RELATING TO ASSESSMENT YEAR 2008-2009. 2. NONE PUT IN APPEARANCE ON BEHALF OF THE ASSESSEE AT THE HEARING FIXED FOR 28.10.2013. THE NOTICE OF HEARING WAS SEN T TO THE ASSESSEE THROUGH REGISTERED POST, AT THE ADDRESS, FURNISHED BY THE ASSESSEE IN COLUMN NO. 10 OF FORM NO. 36. 3. RULE 19 OF THE ITAT RULES, 1963 PRESCRIBES THE C ONDITIONS ABOUT ADMISSIBILITY OF APPEAL FOR HEARING IN THE FOLLOWIN G TERMS: 19(1) THE TRIBUNAL SHALL NOTIFY TO THE PARTIES SPEC IFYING 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. ITA NO. 5161/DEL/2012 2 (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 A DMITTED. 4. THE ITAT IN THE CASE OF C.I.T. VS. MULTIPLAN (IN DIA) 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 DI SPOSAL OF THE APPEALS IN PRESENT CLIMATE OF MOUNTING ARREARS PARTLY DUE TO APPEALS BEING FILED WITHOUT PROPER APPLICATION O F MIND TO FACTS AND LAW AND ALSO AT TIMES FOR ALTOGETHER EXTR ANEOUS CONSIDERATIONS. THEREFORE, ON THE BASIS OF INHERENT POWERS THE TRIBUNAL TREATED THE APPEAL AS UN-ADMITTED. THE PR OVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES SUPPORT SUC H ACTION BY STATING THAT MERE ISSUE OF NOTICE COULD NOT BY ITSE LF MEAN THAT APPEAL HAD BEEN ADMITTED. THIS RULE ONLY CLARIFIED THE POSITION. THERE IS JUSTIFICATION FOR RULE 19(2). WHEN THE AP PEAL IS PRESENTED THE SAME IS ACCEPTED. THEREAFTER THE CONC ERNED CLERK IN REGISTRY VERIFIES WHETHER ACCOMPANYING DOC UMENTS ARE RECEIVED OR NOT AND IF NOT A MEMO IS ISSUED CAL LING 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 IT A LEGALLY VALID APPEAL 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 SIGNIFICAN CE 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 TRIBUNALS RULES REQUIRED THE TRIBUNAL TO DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT. IT MAY BE S TATED HERE ITA NO. 5161/DEL/2012 3 THAT THE TRIBUNAL HAS NOT PASSED ANY ORDER ON THE B ASIS OF RULE 24 OF THE TRIBUNAL RULES 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. 5. THUS, THE ITAT IN THE CASE OF MULTIPLAN (INDIA) PVT. LTD. (SUPRA) HAS 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 PROPER A DDRESS. THEREFORE, THE APPEAL WAS HELD AS INADMISSIBLE IN TERMS MENTI ONED ABOVE. 6. RESPECTFULLY FOLLOWING THE ORDER OF ITAT IN THE CASE OF MULTIPLAN (INDIA) PVT. LTD. (SUPRA), WE HOLD THE APPEAL TO T HE UN-ADMITTED WITH A LIBERTY TO ASSESSEE TO MOVE APPROPRIATE APPLICATIO N AND CORRECT THE DEFECT WHAT-SO-EVER IN THE MEMO ABOUT ITS ADDRESS T O ENSURE A PROPER HEARING OF THE APPEAL. 7. IN THESE TERMS, THE APPEAL IS TECHNICALLY DISMIS SED AS UN-ADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.10.2013, UPON CONCLUSION OF HEARING. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 28/10/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 5161/DEL/2012 4