Tribunal emphasizes fair hearing, rules on non-appearance dismissal, case referred for reconsideration.

The Tribunal ruled that the miscellaneous application could not be dismissed solely due to non-appearance, emphasizing the need to consider the merits of the case. The decision highlighted that the Tribunal must provide the assessee with a fair opportunity to be heard. Consequently, the case was referred back to the regular Bench for reconsideration in line with the majority opinion.

---

---

Issues Involved:
1. Whether the Tribunal could dismiss the miscellaneous application filed by the assessee solely on the ground of non-appearance on the date of hearing, implying a lack of interest in pursuing the matter.
2. If the answer to the first issue is negative, whether the ex parte order passed on 16-11-1993 should be recalled for a de novo hearing in light of the reasons advanced by the assessee for non-appearance.

Issue-wise Detailed Analysis:

Issue 1: Dismissal of Miscellaneous Application Due to Non-Appearance
- The Tribunal initially dismissed the miscellaneous application filed by the assessee on the basis that the non-appearance indicated a lack of interest in pursuing the matter. The Judicial Member stated, "It appears that the assessee is not interested in pursuing the matter. In view of this, we decline to accede to the request of the assessee and, accordingly, the Misc. Application is dismissed."
- The Accountant Member disagreed, arguing that the Tribunal was obligated to consider the contents of the miscellaneous application and the evidence furnished, even in the absence of the assessee. He stated, "The Tribunal could not assume that the non-appearance reflected the lack of interest on the part of the assessee in pursuing the misc. application."
- The Third Member agreed with the Accountant Member, emphasizing that the Tribunal should have considered the miscellaneous application on its merits. He highlighted that Rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963, as amended, does not allow for dismissal due to non-appearance but mandates a decision on merits. He stated, "I hold that on the facts and in the circumstances of the case, the Tribunal cannot dismiss the Miscellaneous Application filed by the assessee only on the ground that he failed to appear on the date of hearing."

Issue 2: Recall of Ex Parte Order for De Novo Hearing
- The Accountant Member, after reviewing the evidence and the reasons provided by the assessee for non-appearance, opined that justice would be served by allowing a hearing. He stated, "Interests of justice would be fully met in case an opportunity of hearing is allowed to the assessee in respect of the appeal which had been disposed of earlier on ex parte basis."
- Given the Third Member's agreement with the Accountant Member on Issue 1, the necessity of addressing Issue 2 was negated. The Third Member concluded, "In view of my opinion on Question No. 1, Question No. 2 does not arise."

Conclusion:
The Tribunal, after considering the majority opinion, decided that the miscellaneous application could not be dismissed solely due to non-appearance. The case was to be reconsidered on its merits, ensuring that the assessee is given a reasonable opportunity to be heard. The matter was referred back to the regular Bench for a decision according to the majority opinion.

---