Agache Associates Ltd.,, New Delhi vs Assessee

M/s. Agache Associates Ltd., vs. ITO, Company Ward - 1(2), 8th Floor, Eros Apartments, New Delhi. 56, Nehru Place, New Delhi - 110 019.

(PAN : AAACA9911H)

(APPELLANT) (RESPONDENT)

ASSESSEE BY : None REVENUE BY : Shri K.K. Jaiswal, Senior DR

Date of Hearing : 16.04.2015 Date of Pronouncement : 16.04.2015

ORDER

PER GEORGE GEORGE K., JM :

This appeal, at the instance of the assessee, is directed against the

order of the CIT (A)-IV, New Delhi dated 11.01.2013. The relevant

assessment year is 2008-09.

2. When the matter was called up for hearing today, no one has

appeared on behalf of the assessee. The assessee has not filed any

adjournment application also. On an earlier occasion also, i.e. on

06.03.2014, the assessee has not appeared and the matter was adjourned. 2 ITA No.2232/Del./2013

In these circumstances, it appears that the assessee is not interested in

prosecuting the appeals. The appeal filed by the assessee is, therefore,

liable to be dismissed, for non-prosecution. Our above view finds support

from the following decisions :-

i. CIT vs. B.N. Bhattachargee & Anr. [118 ITR 461] wherein their Lordships have held:

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

ii. Estate of late Tukojirao Holkar vs. CWT [223 ITR 480 (M.P.)], wherein, while dismissing the reference made at the instance of the assessee in default, their Lordships made the following observation:-

"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 reference, the court is not bound to answer the reference."

3. Rule 19 of 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 (1) shall not by itself be deemed to mean that the appeal has been admitted. "

3 ITA No.2232/Del./2013 4. 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 expeditious 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 the Tribunal treated the appeal as unadmitted. The provisions of Rule 19 of the Appellate Tribunal Rules support such action by stating that mere issue of 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 presented the same 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 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 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 admission 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. "

4 ITA No.2232/Del./2013 5. Thus, the ITAT in the case 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 address. Therefore, the appeal was

held as inadmissible in terms mentioned above.

6. 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 defect

whatsoever in the memo about its address to ensure a proper hearing of the

appeal.

7. In these terms, the appeal is technically dismissed as unadmitted.

Order pronounced in open court on this 16th day of April, 2015.

Sd/- sd/- (T.S. KAPOOR) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated the 16th day of April, 2015 TS

Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-IV, New Delhi 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.