Failure on the part of appellant to appear or prepare books to enable the hearing court is not bound to answer

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH `H’ NEW DELHI

BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER

AND

SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER

I.T.A.No.2072/Del/2011

Assessment Year: 2007-08

Uxhur Bharat Ltd.,

C-7, Sector-3,

Noida.

(Appellant)

Vs.

Addl.Commissioner of Income Tax,

Noida Range, Noida - 201301

 (Respondent)

Appellant by: None

Respondent by: Mrs. Reena S.Puri, Sr.DR

PER CHANDRAMOHAN GARG, JUDICIAL MEMBER

This appeal has been preferred by the assessee against the order of the Commissioner of Income Tax(A), Ghaziabad dated 25.2.2008 for AY 2007- 08.

2. Initially, the case was fixed for hearing on 23.06.2011 and passing through several adjournments, finally the case was fixed for hearing on 28.8.2012 i.e. today. At the time of hearing, Mrs. Reena S.Puri, Sr. DR appeared on behalf of the respondent revenue but neither the assessee nor his representative appeared before us and no application for adjournment or any other request has been placed before us.

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.

6. In the result, the appeal filed by the assessee is dismissed for nonprosecution.

Order pronounced in the open court on 28.8.2012.

                                                        Sd/-                           Sd/-

                                (SHAMIM YAHYA)    (CHANDRA MOHAN GARG)

                             ACCOUNTANT MEMBER   JUDICIAL MEMBER

DT. 28th August 2012

‘GS’

Copy forwarded to:-

1. Appellant

2. Respondent

3. CIT (A)

4. CIT

5. DR

By Order

Asstt. Registrar