Appeal treated as un admitted under rule 19 can recall after explaining the reason for non compliance

Last updated: 16 August 2013

Court :
INCOME TAX APPELLATE TRIBUNAL

Brief :
This case was listed for hearing before the Tribunal on 15-4-2013 and for this assessee was informed. Today i.e. on 15-4-2013 when the case was called on board, none appeared on behalf of the assessee nor any request for adjournment has been filed before the Tribunal despite the service of notice upon the assessee. It seems that the assessee is not interested in prosecuting its appeal; hence, the appeal filed by the assessee is liable to be dismissed, for non-prosecution. In our above view, we find support from the following decisions: 1. In the case of CIT vs. B.N. Bhattachargee and another, reported in 118 ITR 461 [relevant pages 477 & 478] wherein their Lordships have held that: “The appeal does not mean merely filing of the appeal but effectively pursuing it.”

Citation :
Joginder Kumar, Tax, S/o Sh. Nota Ram, Khanna Kothi, Krishanpura, Panipat-132103 [PAN : AAYPG0984H) (Appellant) vs. Assistant Commissioner of Income Panipat Circle, Panipat (Respondent)

IN THE INCOME TAX APPELLATE TRIBUNAL

(DELHI BENCH ‘E’: NEW DELHI)

BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER

And

SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER

ITA No.3634/DEL/ 2010

(Assessment Year: 2004-05)

Neeraj Kumar, Vs. ITO,

108, B Block, Saifpur, Ward -2(1),

Firojpur (Ramraj), Hastinapur,

Mawana,

Meerut Meerut

ALOPK1170A

(Appellant) (Respondent)

ASSESSEE BY : Shri Anil Jain, Adv. REVENUE BY : None

ORDER

Per Shamim Yahya, A.M.

This appeal by the assessee is directed against the order of CIT(A) dated 19.11.2008 and pertains to assessment year 2004-05.

2. The grounds of appeal read as under :-

“1. The Ld. CIT(A) has erred in passing an exparty order without service of notice of hearing and providing opportunity of hearing.

2. The Ld. CIT(A) has erred in confirming the order of the Ld. AO making the addition of Rs. 16,58,930/- u/s 144 as against returned income of Rs. 55250/- without service of notice and also ignoring the fact that all the explanations along with evidence for which the additions has been made were duly filed before the CIT, Meerut during proceedings u/s 133(6).

3. The order of the Ld. CIT is against law and facts of the case.

4. The appellant craves the right to add, amend or withdraw any grounds of appeal at the time of hearing.”

3. In this case, assessment was framed u/s 144 of the IT Act. In the assessment order Assessing Officer noted that as per the information received from the letter dt. 31/05/2005 received from the office of Ld. CIT, MRT, the assessee had made deposits of Rs. 15,88,930/- in his S.B.A/C No. 36191 with PNB, MRT and deposited Rs. 70,000 in his S.B.A/C No. 11118 with PNB, RAj Nagar, Ghaziabad. Since, the total deposits of Rs. 16,58,930/- made by the assessee could not be explained in the absence of any return filed by the assessee or compliance of any sort in this regard, the entire amount of Rs. 16,58,930/- was treated to be the income of assessee which has not been disclosed to the department.

4. Upon the assessee’s appeal Ld. CIT(A) noted that nobody had appeared on behalf of the assessee. Hence, he dismissed the appeal in liminie. Against the above order, assessee is in appeal before us.

5. We have heard the Ld. Counsel of the assessee and perused the record. The Ld. DR has filed for adjournment. However, in our considered opinion, the matter can be adjudicated by perusing the records and hearing the Ld. AR in this regard. Accordingly, we proceed to adjudicate the issue. We find that Ld. CIT(A) has not adjudicated the issue in the light of the facts of case. He has summarily dismissed the appeal for non-prosecution. We find that it was incumbent upon the Ld. CIT(A) to properly adjudicate the matter. We, further, find that assessment order has also been passed u/s 144 of the IT Act. In our considered opinion, the interest of justice will be served if the matter is remitted to the files of the Assessing Officer to consider the issue of fresh. Accordingly, we remit the issue to the file of the Assessing Officer to consider the issue of fresh.

6. In the result, this appeal filed by the assessee stands allowed for statistical purposes.

Order pronounced in Open Court on 9^th July, 2013.

Sd/- Sd/-

(I.C.Sudhir ) (Shamim Yahya)

Judicial Member Accountant Member

B.Rukhaiyar

Date: 9 July, 2013

Copy forwarded to

1. Appellant

2. Respondent

3. CIT

4. CIT (A)

5. CIT (ITAT), New Delhi

IN THE INCOME TAX APPELATE TRIBUNAL

DELHI BENCH “D”: NEW DELHI

BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER &
SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER

ITA No. 4044/Del/2011

A.Y. : 1992-93

Joginder Kumar, vs. Assistant Commissioner of Income Tax,

S/o Sh. Nota Ram, Panipat Circle, Panipat

Khanna Kothi,

Krishanpura, Panipat-132103

[PAN : AAYPG0984H)

(Appellant) (Respondent)

Assessee by : None

Department by : Smt. Shumana Sen, Sr. D.R

O R D E R

PER SHAMIM YAHYA: AM

The assessee has filed this appeal against the order dated 13.6.2011 passed by the Ld. Commissioner of Income Tax (Appeal), Karnal.

2. This case was listed for hearing before the Tribunal on 15-4-2013 and for this assessee was informed. Today i.e. on 15-4-2013 when the case was called on board, none appeared on behalf of the assessee nor any request for adjournment has been filed before the Tribunal despite the service of notice upon the assessee. It seems that the assessee is not interested in prosecuting its appeal; hence, the appeal filed by the assessee is liable to be dismissed, for non-prosecution. In our above view, we find support from the following decisions:

1. In the case of CIT vs. B.N. Bhattachargee and another, reported in 118 ITR 461 [relevant pages 477 & 478] wherein their Lordships have held that:

“The appeal does not mean merely filing of the appeal but effectively pursuing it.”

2. In the case of Estate of late Tukojirao Holkar vs. CWT; 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 made, fails to appear at the hearing, or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, the court is not bound to answer the reference.”

3. In the case of Commissioner of Income-tax vs. Multiplan India (P) 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 communication for adjournment was received. There was no communication or information as to why the revenue chose to remain absent on that date. The Tribunal on the basis of inherent powers, treated the appeal filed by the revenue as un-admitted in view of the provisions of Rule 19 of the Appellate Tribunal Rules, 1963.

3. The assessee, if so desired, shall be free to move this Tribunal praying for recalling this order and explaining reasons for non-compliance etc. then this order may be recalled.

4. In the result, the appeal filed by the assessee, is dismissed, for non-prosecution.

Order pronounced in the open court on 15/4/2013, upon conclusion of hearing.

Sd/- Sd/-

[A.D. JAIN) [SHAMIM YAHYA]

JUDICIAL MEMBER ACCOUNTANT MEMBER

Date: 15/4/2013

SRBHATNAGAR

Copy forwarded to: -

1. Appellant 2. Respondent 3. CIT 4. CIT (A)

5. DR, ITAT

TRUE COPY

By Order,