Revenue appeal becomes infructuous when refund is implemented without a stay, and the matter need not be decided on merits.

Where the Revenue did not seek a stay of the Commissioner (Appeals)' order and the refund was already paid in consequential proceedings, the Tribunal treated the subsequent appeal as infructuous. The payment of refund was regarded as having the concurrence of the jurisdictional Commissioner, and the protective demand was held to be immaterial. On that basis, no error was found in declining to decide the appeal on merits, because the Revenue's own conduct had rendered the matter incapable of effective adjudication. The Tribunal's dismissal of the appeal as infructuous was therefore upheld, and the application was rejected.

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Issues: Whether the Revenue's appeal before the Tribunal was rightly dismissed as infructuous after the refund had already been paid in consequential proceedings, and whether any error was made in not deciding the appeal on merits.

Analysis: No stay of the Commissioner (Appeals)' order had been sought when the Revenue filed the appeal. The refund was paid before the appeal was pursued, and the payment was treated as having the concurrence of the jurisdictional Commissioner. The issuance of a protective demand was held to be immaterial. In these circumstances, the Revenue's own conduct rendered the appeal infructuous, and no mistake was found in the Tribunal's earlier order.

Conclusion: The Tribunal's order dismissing the Revenue's appeal as infructuous was upheld, and the application was rejected.

Ratio Decidendi: Where the Revenue allows implementation of the appellate refund order without obtaining a stay, the subsequent appeal becomes infructuous and cannot be reopened on the ground that it was not decided on merits.

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