2017 (7) TMI 1441

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....ON'BLE MR. JUSTICE INDERJEET SINGH For the Appellant : Mr. Sandeep Taneja For the Respondent : Mr. K.D. Mathur for Mr. R.B. Mathur Judgment 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal has dismissed the appeal on the ground of delay in filing the application for recalling the order dt. 7.12.2001 dismissing the appeal as una....

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....order was passed particularly Rule 24 which reads as under:- "24. Dismissal of appeal for appellant's default etc.-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, the Tribunal may in its discretion either dismiss the appeal for default or may hear it ex parte. Provided that where....

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....the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his nonappearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal." 3.4 Taking into consideration the language of the Rule 24 after amendment, it is clear that tribunal could not have dismissed the appeal for default....

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....'s appeal was not maintainable. If for any reason, the assessee was not being represented on the date of hearing, the Tribunal could have proceeded for hearing of the appeal ex parte provided in Rule 24 but that was not done. The appeal has not been heard on the merits and the Tribunal erroneously held that the assessee's appeal is not maintainable in law." 6. Counsel for the respondent ....