Indu Kapahi, New Delhi vs Assessee
- CitationI.T.A. No.2629 /Del/2011
Ratio decidendi
The rule this decision rests on
The Tribunal treats an appeal as unadmitted, and dismisses it on that footing, where the assessee's counsel fails to appear and the record shows repeated adjournments that suggest the assessee is not pursuing the appeal; mere issue of notice does not by itself amount to admission of the appeal. An appeal may be dismissed as unadmitted under the Tribunal's inherent powers, for the purpose of proper and expeditious disposal and in view of the Appellate Tribunal Rules, where the Tribunal has not yet scrutinised whether the appeal conforms to the Rules and to section 253 of the Act, and such scrutiny is reserved for the hearing. Dismissal as unadmitted is without prejudice to the assessee's right to apply for recall of the order upon demonstrating sufficient cause for non-appearance at the hearing.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
This is an appeal filed by assessee against the order of Ld. CIT(A) dated 04.02.2011 raising as many as 6 grounds of appeal. The appeal was firstly fixed for hearing on 25.07.2011 for which notice well in advance was sent, which has not returned by the postal department and giving more opportunity the hearing was adjourned to 01.12.2011 and again to 10.05.2012 as bench did not function on 01.12.2011. On 10.05.2012 both the parties were present but the hearing was adjourned to 03.10.2012 and to 05.11.2013 on which date assessee's counsel requested for time and the hearing was adjourned to 25.02.2014 on which date also assessee's counsel submitted written request for adjournment. The date of hearing was 2 ITA No.2629/Del/2011
adjourned to 27.05.2014 and again to 17.06.2014 for want of time. Since bench did not function on 17.06.2014, the hearing was adjourned to 28.10.2014 and again to 02.03.2015 on which date also written request was submitted by assessee's counsel and the hearing was adjourned to 20.05.2015, which date was informed to both the parties present in the open court. On 20.05.2015, none was present on behalf of the assessee.
2. In view of above, it is implied that the assessee is not interested in prosecution of his appeal and therefore, the appeal filed by assessee is unadmitted and is dismissed as mere issue of notice does not mean that appeal is admitted. We get support from the following case laws:
3. 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 3 ITA No.2629/Del/2011
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).
4. Respectfully following the order of ITAT in the case of Multiplan (India) Pvt. Ltd. (supra), the assessee's appeal is treated as unadmitted and therefore, is dismissed. However, the assessee is at liberty to file an application for recall of the order provided she can demonstrate that she was prevented by sufficient cause for not appearing at the time of hearing.
5. In view of above, appeal filed by assessee is dismissed as unadmitted.
6. Order as pronounced in the open court orally on the date of hearing is pronounced in writing on this 22nd May, 2015.
Sd./- Sd./-
( G. C. GUPTA) (T.S. KAPOOR) VICE PRESIDENT ACCOUNTANT MEMBER Date:22nd May, 2015 Sp
Copy forwarded to:- 1. The appellant 2. The respondent 3. The CIT 4. The CIT (A)-, New Delhi.
5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.
True copy.
By Order
(ITAT, New Delhi).
4 ITA No.2629/Del/2011 S.No. Details Date Initials Designation 1 Draft dictated on Sr. PS/PS 2 Draft placed before author Sr. PS/PS Draft proposed & placed before the 3 JM/AM Second Member Draft discussed/approved by Second 4 AM/AM Member 5 Approved Draft comes to the Sr. PS/PS 22/5/15 Sr. PS/PS 6 Kept for pronouncement 22/5 Sr. PS/PS 7 File sent to Bench Clerk 22/5 Sr. PS/PS Date on which the file goes to Head 8 Clerk 9 Date on which file goes to A.R. 10 Date of Dispatch of order
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