M/S. RAJ ENTERPRISES,KOLKATA vs. ITO, WARD-36(1), KOLKATA, KOLKATA

The captioned appeal filed by the assessee, pertaining to the assessment year 2004-2005, is directed against an order passed by ld. Commissioner of Income Tax (Appeals)-XX, Kolkata in Appeal No.212/CIT(A)-XX/Wd.-36(1)/2007-08/Kol, dated 05.03.2014, which in turn arises out of an order passed by the Assessing Officer (AO) Under Section.143(3) of the Income Tax Act 1961, (in short the ‘Act’), dated 11.12.2006.

This appeal came for hearing today i.e. on 15.12.2016. The notice was sent to the assessee for hearing by registered post with AD on 02.11.2016 to the address given by the assessee in column no.10 of Form No.36. However no one was present on behalf of the assessee on the date of hearing. Neither an adjournment petition was filed in respect of the above assessee, it means that assessee is not interested 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.

Considering the above judicial pronouncements, we dismiss the appeal of the assessee for non-prosecution.

In the result, appeal filed by the assessee is dismissed for non- prosecution. Order pronounced in the open court on this 21/ 12/2016.