2020 (3) TMI 1326

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....undisclosed transportation receipt and Rs. 2,23,885/- in the shape of TDS towards excess of assets over liabilities to the total income of the petitioner for the Assessment Year 2009-10. Being aggrieved, the petitioner approached the Commissioner of Income Tax (Appeals) - 2, Bhubaneswar, which vide its order dated 22.2.2016 in I.T. Appeal No.0288/2015-16, partly allowed the appeal of the petitioner herein i.e. it conformed the addition of the undisclosed transportation receipt of Rs. 72,23,004/- to the income while waived of the addition of Rs. 2,23,885 in the shape of TDS towards excess of assets over liabilities. Being aggrieved by the order dated 22.02.2016 of the CIT (A)-2, Bhubaneswar, the petitioner approached the Income Tax Appellate....

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.... dismiss the appeal for want of prosecution even if the appellant therein has not appeared when the appeal was taken up for hearing. "Section 254(1) of the Income Tax Act, 1961 - Provides that "the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit." 5. Learned counsel for the petitioner further submitted that Rule 24 of the 1963 Rules does not give power to the Ld. Tribunal to dismiss the appeal for want of prosecution. The said Rule articulates that, where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when t....

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....Appellate Tribunal Rules, 1946 which gave power to the Tribunal to dismiss the appeal for want of prosecution. For ready reference, Section 33(4) of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 are reproduced below:- "Section 33 (4) of the Income Tax Act, 1922 "33(4). The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner." Rule 24 of the Appellate Tribunal Rules, 1946 - " Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing....

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....e merits and not dismissed owing to the absence of the appellant. This position of law was affirmed by the Apex Court. 8. The said principle was also affirmed by the Supreme Court in Balaji Steels Re-rolling Mills v. CCE [2014 (16) SCC 360] and similar line of judgments rendered by different High Courts, like - Bharat Petroleum Corporation Limited Vs ITAT, Mumbai [2013 SCC online BOM 1385: (2013) 359 ITR 271); CIT v. H S Akodia [(1966) 61 ITR 50 (MP)]; M X De Nornha & Sons v. CIT [(1950) 18 ITR 928 (All)]; Mangat Ram Kuthalia v. CIT [(1960) 38 ITR 1 (Pun)]; Ganesh Vs. CCE, Salem-I, Madras High Court [2019 (365) ELT 301 (Mad.)]; N.S. Mohan v. The ITAT & Anr in W.P. No. 8126 of 2018. 9. In yet another land mark judgment rendered by the ....