| | Appeal treated as un admitted under rule 19 can recall after explaining the reason for non compliance |
| Posted on 16 August 2013 by Diganta Paul | |
CourtINCOME TAX APPELLATE TRIBUNAL BriefThis case was listed for hearing before the Tribunal on 15-4-2013 and for this assessee was informed. Today i.e. on 15-4-2013 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 despite the service of notice upon the assessee. It seems that the assessee is not interested in prosecuting its appeal; hence, the appeal filed by the assessee is liable to be dismissed, for non-prosecution. In our above view, we find support from the following decisions: 1. In the case of CIT vs. B.N. Bhattachargee and another, reported in 118 ITR 461 [relevant pages 477 & 478] wherein their Lordships have held that: "The appeal does not mean merely filing of the appeal but effectively pursuing it." CitationJoginder Kumar, Tax, S/o Sh. Nota Ram, Khanna Kothi, Krishanpura, Panipat-132103 [PAN : AAYPG0984H) (Appellant) vs. Assistant Commissioner of Income Panipat Circle, Panipat (Respondent) Judgement IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH 'E': NEW DELHI) BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER And SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA No.3634/DEL/ 2010 (Assessment Year: 2004-05) Neeraj Kumar, Vs. ITO, 108, B Block, Saifpur, Ward -2(1), Firojpur (Ramraj), Hastinapur, Mawana, Meerut Meerut ALOPK1170A (Appellant) (Respondent) ASSESSEE BY : Shri Anil Jain, Adv. REVENUE BY : None ORDER Per Shamim Yahya, A.M. This appeal by the assessee is directed against the order of CIT(A) dated 19.11.2008 and pertains to assessment year 2004-05. 2. The grounds of appeal read as under :- "1. The Ld. CIT(A) has erred in passing an exparty order without service of notice of hearing and providing opportunity of hearing. 2. The Ld. CIT(A) has erred in confirming the order of the Ld. AO making the addition of Rs. 16,58,930/- u/s 144 as against returned income of Rs. 55250/- without service of notice and also ignoring the fact that all the explanations along with evidence for which the additions has been made were duly filed before the CIT, Meerut during proceedings u/s 133(6). 3. The order of the Ld. CIT is against law and facts of the case. 4. The appellant craves the right to add, amend or withdraw any grounds of appeal at the time of hearing." 3. In this case, assessment was framed u/s 144 of the IT Act. In the assessment order Assessing Officer noted that as per the information received from the letter dt. 31/05/2005 received from the office of Ld. CIT, MRT, the assessee had made deposits of Rs. 15,88,930/- in his S.B.A/C No. 36191 with PNB, MRT and deposited Rs. 70,000 in his S.B.A/C No. 11118 with PNB, RAj Nagar, Ghaziabad. Since, the total deposits of Rs. 16,58,930/- made by the assessee could not be explained in the absence of any return filed by the assessee or compliance of any sort in this regard, the entire amount of Rs. 16,58,930/- was treated to be the income of assessee which has not been disclosed to the department. 4. Upon the assessee's appeal Ld. CIT(A) noted that nobody had appeared on behalf of the assessee. Hence, he dismissed the appeal in liminie. Against the above order, assessee is in appeal before us. 5. We have heard the Ld. Counsel of the assessee and perused the record. The Ld. DR has filed for adjournment. However, in our considered opinion, the matter can be adjudicated by perusing the records and hearing the Ld. AR in this regard. Accordingly, we proceed to adjudicate the issue. We find that Ld. CIT(A) has not adjudicated the issue in the light of the facts of case. He has summarily dismissed the appeal for non-prosecution. We find that it was incumbent upon the Ld. CIT(A) to properly adjudicate the matter. We, further, find that assessment order has also been passed u/s 144 of the IT Act. In our considered opinion, the interest of justice will be served if the matter is remitted to the files of the Assessing Officer to consider the issue of fresh. Accordingly, we remit the issue to the file of the Assessing Officer to consider the issue of fresh. 6. In the result, this appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in Open Court on 9th July, 2013. Sd/- Sd/- (I.C.Sudhir ) (Shamim Yahya) Judicial Member Accountant Member B.Rukhaiyar Date: 9 July, 2013 Copy forwarded to 1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. CIT (ITAT), New Delhi |
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