2013 (10) TMI 73

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.... assessment years 2007-08 and 2008-09 in limine on the ground that the appellant did not appear, the question raised is, 'whether the Income Tax Appellate Tribunal, exercising powers of second appeal under Section 254 of the Act, can dismiss the appeal in limine without going into the merits of the case.' 3. Both the appeals were preferred and were admitted on following two substantial questions of law:- "1. Whether under the facts and circumstances of the case the Hon'ble Income Tax Appellate Tribunal was justified in dismissing the appeal in limine, without going into the merits of the case? 2. Whether the Income Tax Appellate Tribunal was justified in exercising the power given under Section 254 of the I.T. Act, 1961, in dismissing th....

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....s follows:- "Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under s. 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short circuit the same by dismissing it for default of appearance. Now although Rule 24 provides for dismissal of an appeal for the failure of appellant to appear, the Rules at the material time did not contain any provision for restoration of the appeal. Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal [vide Shri Bhagwan Radha Kishen v. Commissioner of Income tax, U.P.(3) and Mangat Ram Kuthiala & Ors. v. Commissioner of Income tax, Punjab(4)]. There i....

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....representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal." 7. In the present case the assessee did not appear and participate in the proceedings of assessment. The Assessing Officer, in compulsory scrutiny after issuing notice under Section 143 (2) on return filed declaring total income of Rs.1,72,350/- in the assessment year 2008-09, proceeded....