MEHUL OVERSEAS PVT. LTD.,KOLKATA vs. I.T.O., WARD-12(2), KOLKATA, KOLKATA

This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-XXX, Kolkata dated 25.08.2014 which pertains to the assessment year 2009-10.

When the matter was called on for hearing no one appeared on behalf of the assessee, nor any application for adjournment was filed, there was no response from the side of the assessee though the notice of hearing was issued to the assessee by RPAD at the address furnished by the assessee in column 10 of the memo of appeal in form no. 36, fixing the hearing on 24.04.2017 (today). From the above, it is inferred that the assessee is not interested in pursuing its case.

Considering the facts of the case and keeping in view the provisions of rule 19(2) of the Income-tax Appellate Tribunal Rules as were considered in the case of A.Y. 2009-10 Mehul Overseas Pvt. Ltd. Vs. ITO Wd-12(2) Kol. Page 2 CIT vs. Multiplan India Ltd., (38 ITD 320)(Del), the assessee’s appeal is liable to be dismissed for want of prosecution.

The Hon'ble Madhya Pradesh High Court in the case of Estate of Late Tukojirao Holkar vs. CWT (223 ITR 480) has held as under: "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."

Similarly, Hon'ble Punjab & Haryana High Court in the case of New Diwan Oil Mills vs. CIT (2008) 296 ITR 495) returned the reference an answered since the assessee remained absent and there was not any assistance from the assessee.

Their Lordships of Hon'ble Supreme Court in the case of CIT vs. B. Bhattachargee & Another (118 ITR 461 at page 477-478) held that the appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same.

Respectfully following the view taken in the cases cited supra, we dismiss the appeal of the assessee for non-prosecution. Before parting, we add that in case the assessee is serious in pursuing the appeal filed, then it would be at liberty to pray for a recall of this order by moving an appropriate petition, as per law.