1991 (5) TMI 120 - AT - Income Tax

Revenue appeal treated unadmitted under Rule 19, s.253; Rule 24 inapplicable where appeal never admitted

ITAT held that, in terms of Rule 19 of the Appellate Tribunal Rules, 1963, mere issue of notice of hearing does not amount to admission of the appeal ... Non-appearance of appellant's representative - Scope of the provisions of Rule 19 of Appellate Tribunal Rules, 1963 - entitlment the ITAT to straightaway dismiss an appeal filed within the statutory limit, on account of non-appearance of the appellant's representative - HELD THAT:- Nobody represented the appellant nor any communication for adjournment was received. There was no communication or information as to why the appellant chose to remain absent on the day when the appeal was fixed and called for hearing. Respondent did not remain present because the notice issued by Registered Post with Acknowledgement Due at the address given by the appellant was returned by the postal authorities with remark 'no such firm at S-243, Gr. Kailash'. Ultimately an order was passed on 22nd October, 1990 treating the appeal as unadmitted, keeping in mind the provisions of Rule 19 of the Appellate Tribunal Rules, which states that issue of notice of hearing did not mean appeal was admitted. The Revenue in this case not only chose to ignore the date of hearing but even did not approach this Tribunal earlier or on the following day or thereafter and ultimately after five days the order was signed. Instead of presenting appropriate petition praying for the opportunity, cancellation of the order and admission of the appeal by furnishing correct address of respondent, etc., the Revenue chooses to add to the litigation, for no justifiable reason, not only of this Tribunal but also of the Hon'ble High Court. In our opinion, no question of law arises. It was submitted at the time of hearing of the Reference Application that the language of Rule 24 of the Appellate Tribunal Rules required the Tribunal to dispose of the appeal on merits after hearing the respondent. It may be stated here that the Tribunal has not passed any order on the basis of Rule 24 of the Tribunal Rules which presupposes admission of appeal under section 253 of the Act besides there was no question of hearing the respondent since none could be notified because of incorrect address given by the appellant and proper particulars not furnished so far. In the result, the application is dismissed Issues involved: 1. Interpretation of Rule 19 of Appellate Tribunal Rules, 1963 regarding dismissal of appeal for non-appearance of appellant's representative. 2. Consideration of whether the Tribunal was right in dismissing the departmental appeal for default in appearance, ignoring Rule 24 of the Appellate Tribunal Rules which provides for ex parte hearing and disposal of appeal on merits.Interpretation of Rule 19: The Tribunal declined to refer the questions of law to the High Court as they did not arise from the Tribunal's order. The appeal was fixed for hearing, but the appellant did not appear, and no communication for adjournment was received. The notice sent to the appellant was returned undelivered. The Tribunal treated the appeal as unadmitted based on Rule 19, which clarifies that the issue of notice does not automatically mean the appeal is admitted.Procedural Aspects: Normally, when appeals are treated as unadmitted, appellants provide explanations through miscellaneous petitions. The Tribunal, based on inherent powers, treated the appeal as unadmitted to ensure proper and expeditious disposal of appeals. The Tribunal's action was supported by Rule 19(2), which clarifies that the mere issue of notice does not imply admission of the appeal.Inherent Powers of Tribunal: The Tribunal has inherent powers for expeditious disposal of appeals due to mounting arrears. These powers allow the Tribunal to treat appeals as unadmitted if necessary. The Tribunal can invoke inherent powers when appellants remain absent, and it is not for the Tribunal to search for reasons for non-appearance.Rule 24 Consideration: The Tribunal did not pass any order based on Rule 24, as it presupposes admission of the appeal under section 253 of the Act. Since the respondent could not be notified due to incorrect address details, there was no question of hearing the respondent.In conclusion, the Tribunal dismissed the application as the questions of law did not arise from the Tribunal's order, and the appellant failed to provide proper explanations or approach the Tribunal in a timely manner. The Tribunal's decision was based on procedural rules and inherent powers to ensure efficient disposal of appeals.