N.C. Mittal & Co., Faridabad vs Assessee
- CitationITA No. 3876/Del/2012
Ratio decidendi
The rule this decision rests on
The Tribunal may dismiss an appeal for non-prosecution where the assessee, having been called on board, neither appears nor seeks adjournment, the Tribunal inferring from such non-appearance that the assessee is not interested in prosecuting the appeal; in such a case the appeal is liable to be un-admitted and dismissed under the Tribunal's inherent power, a power the Tribunal exercises in conjunction with Rule 19 of the Appellate Tribunal Rules, 1963. An appeal is not discharged by the mere filing of it; the appellant must effectively pursue it, and a failure to do so justifies dismissal for non-prosecution. The dismissal is without prejudice to the assessee's right to move the Tribunal for recall of the order by explaining its non-compliance, and the order may be recalled if the Bench is satisfied with the reasons offered.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
N.C.Mittal & Co. ACIT NCMC House, 730 Circle-37(1), Room No.401, Sector-30, Faridabad Vs. 4th Floor, N Block, Vikas Bhawan, PAN:AACGN9920A New Delhi (Appellant) (Respondent)
Appellant by : None. Respondent by : P. Damkanujha, Sr. DR.
ORDER PER A. T. VARKEY, JUDICIAL MEMBER
This appeal by the assessee is directed against the order of the ld CIT(A)- XXVIII, New Delhi dated 15.05.2012 for the Assessment Year 2008-09.
2. Today, i.e. on 10.02.2015 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. It seems that the assessee is not interested in prosecuting the appeal; hence, the appeal filed by the assessee is liable to be un-admitted and dismissed for non-prosecution. In our above view, we find support from the following decisions:-
(i). In the case of CIT Vs. B.N. Bhattachargee & Another 118 ITR 461 (relevant pages 477 & 478) wherein their Lordships have held that "The appeal does not mean merely filing of appeal but effectively pursuing it."
(ii). In the case of Estate of Late Tukoji Rao Holker Vs. CWT 223 IR 480 (MP) while dismissing the reference made at the instance of assessee in default made following observations 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, this court is not bound to answer the reference.
Page No. 2 (iii). In the case of CIT Vs. Multiplan India Pvt. 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 / applicant, nor any communication for adjournment was received.
There was no communication or information as to why revenue choose to remain absent on that date. The Tribunal on the basis of inherent power treated the appeal filed by the revenue as un-admitted in view of Rule 19 of the Appellate Tribunal Rules, 1963.
3. Therefore, keeping in view the above, the appeal filed by the assessee is dismissed for non-prosecution. The assessee, if so advised, shall be free to move this Tribunal praying for recalling of this order and explaining the reasons for non- compliance etc. and if the Bench is so satisfied about the reasons etc, then this order shall be recalled.
4. In the result, the assessee's appeal is dismissed.
Order pronounced in the open court on 12.02.2015.
-Sd/- -Sd/- (S.V.MEHROTRA) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated:12/02/2015
A K Keot
Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi
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