Hemant Kumar Garg, Rudrapur vs Assessee
- CitationITA No. 5884/D/2012
Ratio decidendi
The rule this decision rests on
The Tribunal may dismiss an appeal in limine for non-prosecution where the assessee, having been informed of the hearing, neither appears nor seeks adjournment, since such conduct indicates the assessee is not interested in prosecuting the appeal; the Tribunal is not bound to decide an appeal whose prosecution the appellant has abandoned. Such a dismissal treats the appeal as un-admitted, and the dismissal does not bar later recall: if the assessee subsequently explains the reasons for non-appearance and the Bench is satisfied, the matter may be recalled for adjudication on the merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Appellant by: None Respondent by : Shri T. Vasanthan, Sr. DR Date of Hearing: 10.3.2015 Date of pronouncement:13.3.2015 ORDER
PER CHANDRA MOHAN GARG, JUDICIAL MEMBER
The above appeal has been filed by the assessee against the order of
CIT(A)-II, Dehradun dated 12.09.2012.
2. This appeal was initially fixed for hearing on 23.1.2013 and since then
adjournments have been sought by the counsel for the assessee. Thereafter,
the appeal was fixed for hearing on 10.3.2015 and both parties were informed.
Today on 10.3.2015, no one was present on behalf of the assessee nor any
1 ITA No. 5884/D/2012 Asstt.Year: 2005-06
request for adjournment was placed before the Bench. Shri T. Vasanthan, Sr.
DR appeared on behalf of the Revenue at the time of hearing.
3. It appears that the assessee is not interested in getting the appeal
prosecuted. Hon'ble Madhya Pradesh High Court in the case of Tukojirao
Holkar Vs CWT 223 ITR 480 (MP), while dismissing the reference made at
the instance of the assessee in default, made the following observations:-
"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."
4. ITAT Delhi Bench 'D' in the case of CIT vs Multiplan India (P) Ltd.
38 ITD 320 observed that the provisions of Rule 19 state that mere issue of
notice could not by itself mean that the appeal had been admitted. This rule
only clarifies the position. There might be various reasons with the appellant to
remain absent at the time of hearing. One of the reasons might also be a desire
or absence of need to prosecute the appeal or liability to assist the Tribunal in a
proper manner or to take benefit of vagaries of law.
5. Respectfully following the precedents, the appeal filed by the assessee is
treated as un-admitted and dismissed in limine. We may like to clarify that
subsequently, if the assessee explains the reasons for non-appearance and if the
Bench is so satisfied, the matter may be recalled for the purpose of adjudication
of the appeal.
2 ITA No. 5884/D/2012 Asstt.Year: 2005-06
6. In the result, the appeal filed by the assessee is dismissed for non-
prosecution.
Order pronounced in the open court on 13.3.2015.
Sd/- Sd/-
(S. V. MEHROTRA) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER
DT. 13th MARCH 2015 'GS'
Copy forwarded to:-
1. Appellant 2. Respondent 3. C.I.T.(A) 4. C.I.T. 5. DR By Order
Asstt.Registrar
3
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