TaxTMI 
TaxTMI 
2023 (8) TMI 1356
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....ed the appeal for reason of non-prosecution of the same when even in the context of non-appearance of the appellant, the Appellate Authority was statutorily obliged to dispose of the appeal on merits. Learned counsel appearing for the petitioner also relies on the decision of the Hon'ble Supreme Court in Commissioner of Income Tax, Madras vs. S. Chenniappa Mudaliar, Madurai;(1969)1 SCC 591. 2. The learned Government Pleader, in support of the order, points out the grounds raised by the appellant having been dealt with by the Assessing Officer and reiterated by the Appellate Authority, in its order produced as Annexure-9. It is also pointed out that the appellant had consistently not appeared before the Appellate Authority in which circum....
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....he Appellate Tribunal first had a set of rules which provided that the Tribunal shall determine the appeal on merits, notwithstanding the absence of the appellant and it was also empowered to restore an appeal which was disposed of without hearing the appellant. The substituted rules contained Rule 24A, which empowered the Tribunal to dismiss the appeal for default if the appellant does not appear on the day fixed for hearing and on any day to which the appeal is adjourned; without any provision for restoration of the appeal dismissed for default. 5. The Hon'ble Supreme Court found that the scheme of the Act, especially Section 33 (4) was to dispose of an appeal by making such orders as the Tribunal thinks fit, on the merits. The Hon'ble....
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....nt, if it has been granted three times previously. Subsection( 10) empowers the Appellate Authority to permit the appellant to argue any ground, not set forth in the grounds of appeal, if the omission was not willful or unreasonable. We specifically extract sub-section (11) and (12) of Section 107, without the two provisos under sub-section(11):- "(11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order: xxx xxx xxx xxx (12) The order of the Appellate ....
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....the impugned order has to be examined specially in the light of the ground raised, of a peremptory dismissal for non-prosecution or absence of a counsel. We see from the order that the Appellate Authority has extracted the grounds of appeal and the grounds on which the Assessing Officer has proceeded. The operative portion of the order reads as follows, as found in the translated copy produced across the bar, with a copy served on the learned Government Advocate:- "The departmental representative gave his attendance and apprised of the facts of this case and also requested to confirm the order passed by the court below. Whereas the appellant/tax payer remained absent today the date of hearing being 15.02.2023 and there is no action....
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.... where the Appellate Authority failed to follow the mandate in the statute for disposal of an appeal, which has to be on merits, even if the assessee/appellant had failed to appear before the Authority. We also notice that there is no efficacious alternate remedy available as of now, against the appellate order, since the Tribunal, to which a further appeal is provided, has not been constituted. Leaving the Assessee/petitioner to the appellate remedy as and when the Tribunal is constituted, that too with a further direction to pay 20% of the disputed tax amount would unnecessarily prejudice the assessee. 10. On the above reasoning, we deem it appropriate that the appellate order is set aside for the reasons stated above, without any obse....