Sicpa India Pvt. Ltd. Vs ACIT (ITAT Kolkata)
The Income Tax Appellate Tribunal (ITAT), Kolkata Bench, considered the assessee’s appeal against the order dated 25.03.2015 passed by the Commissioner of Income Tax (Appeals)-3, Kolkata, relating to Assessment Year 2009-10. The appeal was initially listed for hearing on 10.08.2017, and notice of hearing was issued to the address mentioned in Form No. 36. As no one appeared on behalf of the assessee, the matter was adjourned to 09.10.2017. Although notice of hearing had been sent by Registered Post Acknowledgement Due (RPAD), the Bench did not function on that date, and the appeal was adjourned to 27.11.2017. On 27.11.2017, none appeared for the assessee, following which the matter was adjourned to 02.01.2018. Fresh notice was again issued by RPAD to the address provided in Form No. 36. On the adjourned date also, no one appeared on behalf of the assessee. The Tribunal noted that the RPAD notice had not been returned unserved and concluded that the assessee was not interested in prosecuting the appeal.
The Tribunal relied upon the decisions in CIT vs B.N. Bhattacharjee and another, Estate of late Tukojirao Holkar vs CWT, and Commissioner of Income-tax vs Multiplan India (P) Ltd. in support of the principle that filing an appeal alone is insufficient and that an appeal must be effectively pursued. It also noted that where a party fails to appear or take necessary steps for hearing, the appeal may be dismissed for non-prosecution.
Accordingly, the Tribunal held that the appeal was liable to be dismissed for non-prosecution. At the same time, it granted liberty to the assessee to move an application seeking recall of the order by explaining the reasons for non-compliance, upon which the order could be recalled. The appeal was therefore dismissed for non-prosecution.
FULL TEXT OF THE ORDER OF ITAT KOLKATA
This is an appeal by the Assessee against the order dated 25.03.2015 of C.I.T.(A)-3, Kolkata relating to A.Y.2009-10.
2. This appeal was listed for hearing on 10.08.2017. Notice of hearing was sent to the assessee at the address given by the assessee in Form No.36. None appeared on behalf of the assessee and the appeal was fixed for hearing on 09.10.2017. Notice of hearing was sent by RPAD. However, on 09.10.2017 the bench did not function and the case was adjourned to 27.11.2017.. On that date none appeared on behalf of the assessee. The case was adjourned to 02.01.2018. Notice of hearing was issued by RPAD to the address given by the assessee in Form No.36. When the appeal was called for hearing none appeared on behalf of the assessee. Notice sent by RPAD has not been returned unserved. It means that assessee is not interested in prosecuting this appeal. Hence the appeal filed by the assessee is liable to be dismissed for non prosecution. For this view we find support from the following decisions :-
“1. In the case of CIT vs B.N.Bhattachrgee 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 (MP) 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. The assessee, if so desired, shall be free to move this Tribunal praying for recalling this order and explaining reasons for non-compliance etc. then this order may be recalled.
4. In the result, the appeal of the assessee is dismissed for non-prosecution.
Order pronounced in the Court on 02.01.2018.
