Appellate power to dismiss for default and restore ex parte matters where non-appearance is not wilful

The appellate authority's power under section 43(6) of the Delhi Sales Tax Act, 1975 was read broadly enough to include dismissal of an appeal for default of appearance, because the power to "pass such order as it may think fit" is not confined to merits-based disposal. The text also states that an ex parte dismissal may be recalled where the appellant shows that non-appearance was accidental and not wilful or intentional. On the stated facts, the absence was accepted as unintentional, so the ex parte orders were set aside and the appeals restored for hearing.

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Issues: (i) Whether the appellate tribunal had jurisdiction to dismiss the appeals for default of appearance; (ii) Whether the ex parte orders should be set aside on the ground that the appellant's absence was not wilful or intentional.

Issue (i): Whether the appellate tribunal had jurisdiction to dismiss the appeals for default of appearance

Analysis: The appellate power under section 43(6) of the Delhi Sales Tax Act, 1975 authorises the appellate authority, after giving the appellant an opportunity of being heard, to confirm, reduce, enhance or annul the assessment, set aside the assessment and direct fresh inquiry, or pass such order as it may think fit. The wide language of clause (c) supports the view that the tribunal is not confined to orders on merits and may also pass procedural orders, including dismissal for default. The reference to section 48 of the Act and the comparable Madras provision reinforced this construction.

Conclusion: The tribunal had jurisdiction to dismiss the appeals for default of appearance.

Issue (ii): Whether the ex parte orders should be set aside on the ground that the appellant's absence was not wilful or intentional

Analysis: The proprietor's affidavit explained that the date was misunderstood and that counsel was informed accordingly. On that material, the absence was accepted as neither deliberate nor wilful. Since the default was shown to be accidental rather than contumacious, the refusal to restore the appeals would be unjustified.

Conclusion: The ex parte orders were set aside and the appeals were restored for hearing.

Final Conclusion: The tribunal affirmed its power to dismiss appeals for default, but on the facts granted relief by restoring the appeals after accepting that the non-appearance was not intentional.

Ratio Decidendi: The appellate authority's power to "pass such order as it may think fit" includes the power to dismiss an appeal for default, and an ex parte dismissal may be recalled where the appellant shows that non-appearance was not wilful.

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