TaxTMI 
TaxTMI 
2021 (2) TMI 999
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.... 12.12.2014 passed by the Hon'ble Tribunal in the ITA No.1263 of 2011 which is annexed at Annexure B to this petition and further to restore the appeal to the file of the Tribunal in the interest of justice. (C) Your Lordships be pleased to stay the operation and implementation of the impugned order dated 12.12.2014 passed by the Hon;ble Tribunal in the ITA No.1263 of 2011 at Annexure B to this petition pending admission, hearing and final disposal of this petition in the interest of justice. (D) Your Lordships be pleased to stay the operation and implementation of demand notice." 2. We need not delve much into the facts of this litigation as our order dated 02.02.2021 would make the picture abundantly clear. The order dated 02.02.2021 passed by this Court reads as under: "1. It appears that the respondent has not been served with the notice issued by this Court. However, with a view to understand the controversy involved in the present litigation, we have heard Mr. Mohit Gupta, the learned counsel appearing for the writ applicant for some time. 2. It appears that the writ applicant preferred a miscellaneous application under Section 254 o....
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....me Court in the case of M.P. Steel Corporation (supra). 5. We have thought fit to pass this short order so that the respondent can respond to the same on the next date of hearing. 6. Let fresh notice be issued to the respondent for final disposal, returnable on 9th February, 2021. The respondent shall be served directly through Email. 7. Mr. Gupta, the learned counsel, shall furnish one set of his entire paper-book at the earliest to Ms. Mauna Bhatt, the learned senior standing counsel who would be appearing for the respondent as the matter is from Ahmedabad." 3. Mr.M.R.Bhatt, the learned Senior Counsel assisted by Mrs.Mauna M. Bhatt, the learned Sr. Standing Counsel has appeared on behalf of the Revenue. 4. Mr. Bhatt with his usual fairness has pointed out two important aspects of the matter. According to Mr. Bhatt, even otherwise, the Appellate Tribunal could not have dismissed the appeal for non-prosecution. On the issue of limitation also, we have the able assistance of Mr. Bhatt. Mr. Bhatt has fairly submitted that the impugned order passed by the Appellate Tribunal is not sustainable in law. Mr. Bhatt brought to our notice the decision of this....
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....shall make an order setting aside the ex parte order and restoring the appeal. 19. The Apex Court in the case of Commissioner of Income-tax vs. S. Chenniappa Mudaliar (supra), prior to the amendment of Rule 24 (1946 Rules) was deciding this very question as to whether the Tribunal is bound to give proper reasons of question of fact as well as law on merits and whether it can dismiss the appeal on the default of appearance. It was also deciding as to whether Rule 24 of 1946 Rules, which provided for dismissal of appeal for failure of appellant to appear is ultra vires as being in conflict with the provision of Section 33(4) of 1922 Act. It is answered in affirmation. 20. In the case of Rajendra Prasad Borah vs. Income-Tax Appellate Tribunal and others (supra), while interpreting Rule 24 of Income Tax Rules, 1963, Gauhati High Court has held that per se, it does not empower the Tribunal to dismiss the appeal for default in absence of appellant in the following words. "After hearing learned counsel for the parties and on a perusal of the provisions of law referred to hereinabove, it is more than apparent that the course adopted by the learned Tribunal in dis....
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....ed by the counsel. And, the matter was remanded back to the Tribunal for adjudication on merits. It also took note of decision rendered in Rajendra Prasad Borah vs. IncomeTax Appellate Tribunal and others (supra) as also the decision rendered by the Apex Court in Commissioner of Income-tax vs. S. Chenniappa MudaliarI(supra) so also the decision of the Tribhuwan kumar and others vs. Commisioner of IncomeTax and another (supra), and held that the Tribunal could not have dismissed the appeal without adverting to the merits of the case and on the line of the decisions of Gauhati and Rajasthan High Courts, it set aside the order of Tribunal dismissing the appeal for want of prosecution. 23. In the instant case, as could be noted from the order impugned, that the Tribunal has chosen to dismiss the appeal on the ground of non-prosecution. It also noted that RPAD was sent and the same had returned with the remark of the postal department as none having claimed the same. Instead of deciding the matter on merits, it chose to dismiss the same for want of prosecution and this order in our opinion is contrary to the provision of law. 24. When the Supreme Court decided the case....