P K Builders Ghaziabad v. Dcit Ghaziabad

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 Acgpt 1302 A 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 19 A 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