2019 (1) TMI 280 - AT - Income Tax

Non prosecution of appeal - assessee has chosen to be neither present nor represented - Held that - Respectfully following the order of ITAT in the case of MULTIPLAN INDIA (PRIVATE) LIMITED. 1991 (5) TMI 120 - ITAT DELHI-D we dismiss the appeal of the assessee in limine for non-prosecution. However, we wish to clarify that the assessee will be at liberty to approach ITAT for recall of this order and for restoration of this appeal under relevant provisions of law if the assessee is able to show that there was reasonable cause for non representation on the part of the assessee on the date of hearing.

Summary

Issues:
1. Non-prosecution of appeal by the Assessee before ITAT Delhi.

Analysis:
The appeal filed by the Assessee against the order of Ld. CIT(A)-19, New Delhi, for Assessment Year 2011-12 was dismissed due to non-prosecution. During the hearing, no one appeared on behalf of the assessee, leading the Tribunal to conclude that the assessee lacked seriousness in pursuing the appeal. The Tribunal referred to Rule 19 of the ITAT Rules, 1963, which outlines the conditions for the admissibility of appeals for hearing. The Tribunal cited the case of CIT Vs. Multiplan (India) Pvt. Ltd. 38 ITD 320 (Del.) where it was emphasized that the mere issuance of a notice does not automatically make the appeal admissible. Non-attendance was deemed to render the appeal defective, requiring correction by providing the proper address. The Tribunal highlighted that the appeal must be effectively pursued, not just filed, as per legal precedents.

Furthermore, legal positions and judicial precedents were cited to support the dismissal of the appeal. The Madhya Pradesh High Court's ruling in Estate of Late Tukojirao Holkar vs. CWT (223 ITR 480) emphasized that failure to appear or take necessary steps could result in the court not answering the reference. Similarly, the Punjab & Haryana High Court in New Diwan Oil Mills vs. CIT (2008) 296 ITR 495 returned a reference unanswered due to the absence of the assessee. The Supreme Court's decision in CIT vs. B. Bhattachargee and Another (118 ITR 461 at page 477-478) underscored that an appeal entails more than just filing a memo but requires effective pursuit.

Consequently, the ITAT Delhi, following the principles laid down in the Multiplan (India) Pvt. Ltd. case and considering the legal positions and precedents, dismissed the appeal in limine for non-prosecution. However, the assessee was granted the liberty to approach the ITAT for the recall of the order and restoration of the appeal if a reasonable cause for non-representation on the hearing date could be demonstrated. The final order, pronouncing the dismissal of the appeal, was issued on 01/01/2019.