2021 (6) TMI 260

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....case for hearing for 18.05.2016 was not served upon the petitioner. Further it is submitted that the finding of the Tribunal that the notified defects in the appeal memo remains uncured is contrary to the fact that the petitioner had removed all the defects, the same was forwarded by the registered post on 29.10.2014. It is further submitted that the premise on which the Tribunal has dismissed the appeal is totally contrary to the facts on record. In the above circumstances, it is prayed for recalling of the appeal. 3. When the matter was called on, none appeared on behalf of the assessee despite due service of notice. 4. We heard the ld. Sr. DR and perused the contents of the present Miscellaneous Application and the orders passed by thi....

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....008) 174 Taxman 568/302 ITR 243 (Gauhati.) * Tribhuwan Kumar Vs. CIT (2007) 294 ITR 401 (Raj) * Mayur Sheet Grah (P) Ltd. Vs. CIT (2013) 38 taxmann.com 229 * Khushalchand B. Daga Vs. T.K. Surendran, ITO (1972) 85 ITR 48 (Bom) * N.S. Mohan Vs. ITAT 94 Taxmann 92 (Madras) * Smt. Rithasabapathy Vs. DCIT 104 Taxmann.com 431 (Madras). 6. Recently, the Hon'ble Orissa High Court in the case of Rabindra Kumar Mohanty Vs. Registrar ITAT (Orissa) reported in 432 ITR 158 after referring to the above precedents held as follows : "Article 265 of the Constitution mandates that no tax can be collected except by authority of law. Appellate proceedings are also laws in strict sense of the term, which are required to be followed before tax can l....

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....giving both the parties an opportunity of being heard." 7. Therefore, in the light of the legal position enunciated above, we are of the considered opinion that the order passed by the Tribunal is not in consonance with the law laid by the Hon'ble Supreme Court and plain provisions of Rule 24 of the Income Tax Appellate Tribunal Rules. Even the Jurisdictional High Court in the case of Bharat Petroleum Corporation Limited referred supra held that the dismissal of appeal by the Tribunal on default of non-prosecution is a mistake which can be rectified u/s 254(2) of the Act. On the similar lines, the decision of the Hon'ble Delhi High Court in the case of CIT vs. Ansal Housing & Construction Ltd., 274 ITR 131, the decision of the Hon'ble Kera....