If the Party for whom reference is made fail to prepare books so as to enable hearing the court is not bound to answer the reference

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCHES:“F” NEW DELHI

BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER

AND

SHRI B.K. HALDER, ACCOUNTANT MEMBER

ITA No: 5267/Del/2011

A.Y.: 2008-2009

PTC India Ltd.

2nd floor, NBCC Tower

15, Bhikaji Cama Place

New Delhi

(Appellant)

Vs

ACIT, Circle 14(1)

New Delhi

 (Respondent)

Appellant by: None.

Respondent by: Sh. Sudesh Garg, CIT, D.R.

O R D E R

PER DIVA SINGH, JUDICIAL MEMBER

This is the appeal filed by the assessee against the order dated 30.9.2011 of CIT(A)-XVII, New Delhi pertaining to A.Y. 2008-09. However at the time of hearing no one was present on behalf of the assessee nor any adjournment application was placed before the Bench. The date of hearing was intimated to the assessee on the date appeal was filed. Signatures of the person filing the appeal in the Registry are available on record as such the appeal was passed over twice. However since in the third time also neither the assessee was present nor representative and no adjournment petition was also moved. In the circumstances it can safely be concluded that the assessee is not interested in prosecuting the appeal, hence, the appeal filed by the assessee is liable to be unadmitted/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.”

2. In the case of Estate of late Tukojirao Holkar vs. CWT; 223 ITR 480 (M.P.)  while dismissing the reference made at the instance of the assessee in default made following observation 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, the court is not bound to answer the reference.”

3. In the case of Commissioner of Income-tax vs. Multiplan India (P) 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/appellant nor any communication for adjournment was received. There was no communication or information as to why the revenue chose to remain absent on that date. The Tribunal on the basis of inherent powers, treated the appeal filed by the revenue as un-admitted in view of the provisions of Rule 19 of the Appellate Tribunal Rules, 1963.

3. Respectfully following these decisions (supra), the appeal filed by the assesee is treated as unadmitted/dismissed for non prosecution. We may like to clarify that subsequently if the assessee moves an appropriate application for recall of the order and explain the reasons for non appearance and if the Bench is so satisfied, the order may be recalled for the purpose of adjudication of the appeal.

4. In the result, the appeal filed by the assessee is dismissed.

Pronounced in the open court on 30th January,2012 immediately after conclusion of the hearing.

                                                      Sd/-                                Sd/-

                                         (B.K. HALDER)               (DIVA SINGH)

                                ACCOUNTANT MEMBER   JUDICIAL MEMBER

Dt. 30th January,2012

*manga

Copy of the Order forwarded to:

1. Appellant; 2.Respondent; 3.CIT; 4.CIT(A); 5.DR; 6.Guard File

                                                                                                                                      By Order

Dy. Registrar