Daryapur Shetkari Sahakari And Ors vs Assistant Commissioner of Income Tax

N. B. Suryawanshi, J

Admit.

These three appeals assail common judgment and order passed by the Income Tax Appellate Tribunal, Nagpur in ITA Nos. 96/Nag/2010,

97/Nag/2010 and 98/Nag/2010 on similar grounds.

By filing appeals before the Commissioner of Income Tax, Nagpur, the appellant challenged the assessment orders for the assessment year 2002-

03, 2003-04 and 2004-05 passed by the assessing officer by assessing income of assessee under Section 144 r/w Section 147 of the Income Tax Act

(for short ‘the Act’). Since the appeals were dismissed, the appellant approached the Income Tax Appellate Tribunal (for short ‘ITAT’)

by filing further appeals. By the impugned order dated 1-2-2013, ITAT dismissed all three appeals by common order on the ground that none appeared

on behalf of the assessee which means that assessee is not interested in prosecuting these appeals. This order is questioned in the present appeals.

At the time of issuance of notice, following substantial question of law was framed.

i) Whether the Tribunal was justified in dismissing the proceedings in limine contrary to the provisions of Rule 24 of the Income Tax (Appellate

Tribunal) Rules, 1963 ?

We have heard the learned Advocates for the parties and we have perused the record.

The learned Advocate for the appellant by placing reliance on Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 (for short ‘Rules of

1963’) submitted that Tribunal could not have dismissed the appeals in limine for the absence of assessee or his representative. In terms of Rule

24, the Tribunal is duty bound to decide the appeals on merit after hearing the respondent. In this behalf, he placed reliance on the ratio in

Commissioner of Income Tax Vs. S. Chenniappa Mudaliar (1969) 74 ITR 0041, Balaji Steel Re-rolling Mills Vs. Commissioner of Central Excise and

Customs (2014) 272 CTR 205 and Khushalchand B. Daga Vs. T. K. Surendran, Income Tax Officer & others (1972) 85 ITR 0048. He therefore

prays that the impugned order of dismissing the appeals in limine filed by the appellant before the ITAT is unsustainable and the same is liable to be

quashed and set aside and the appeals deserve to be allowed. Per contra, the learned Advocate representing the Revenue supports the impugned

order stating that the Tribunal was justified in dismissing the appeals as the assessee/appellant was not interested in prosecuting the same.

For deciding the controversy, it is necessary to consider the provision contained in Rule 24 of the Rules of 1963 which is as under. Rule 24 :

“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 authorized representative, when the Appeal is called on for hearing, the Tribunal may dispose of the appeal on merits

after hearing the respondent ;

Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards, and satisfies the Tribunal

that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting

aside the ex-parte order and restoring the appeal.

Rule 24 in clear terms mandates that when the appeal is called on for hearing and the appellant does not appear, the Tribunal is required to dispose of

the appeal on merits after hearing the respondent.

The Hon’ble Supreme Court in S. Chenniappa Mudaliar (supra) by taking into consideration the provisions of Section 33(4) of the Income Tax

Act, 1922 along with Rule 24 of the Income Tax Appellate Rules, 1946 as it then stood has held that in an appeal, the Tribunal is required to go into

the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only

be done by giving a decision on the merits on question of fact and law and not by merely disposing of the appeal on the ground that the party

concerned has failed to appear. It was thus held that under Section 33(4) of the Act of 1922, the Tribunal had to dispose of the appeal on merits and

not by dismissing it by default. The ratio in S. Chenniappa Mudaliar is reiterated in Balaji Steel Re-rolling Mills (supra) and is being consistently

followed by the various High Courts.

Taking into consideration the language used in Rule 24 of the Rules of 1963 and applying the principles laid down in S. Chenniappa Mudaliar

(supra), we have no hesitation to come to the conclusion that the impugned order passed by the Tribunal thereby dismissing the appeals in limine for

non-appearance of the appellant holding that the assessee is not interested in prosecuting the appeals is unsustainable. The Tribunal was duty bound to

decide the appeals on merits after hearing the respondent â€" Revenue as per mandate of Rule 24 and in terms of ratio in S. Chenniappa Mudaliar

(supra).

The substantial question is answered by holding that in view of language used in Rule 24, the ITAT was not justified in dismissing the appeals for

absence of assessee in limine and it ought to have decided the appeals on merits even if the appellant or his representative was not present when the

appeals were taken up for hearing. The impugned order therefore, being contrary to Rule 24 of the Rules of 1963 is unsustainable and the same is

liable to be quashed and set aside. Hence, the following order.

(a) Income Tax Appeals are allowed.

(b) Order dated 1-2-2013 passed in ITA Nos. 96/Nag/2010, 97/Nag/2010 and 98/Nag/2010 is set aside.

(c) The respective appeals are restored for adjudication on merits before the Income Tax Appellate Tribunal, Nagpur.

(d) The parties shall appear before the Tribunal on 7-12-2020.

(e) The appeals shall be decided on their own merits and in accordance with law.

(f) Respective contentions of the parties on merits are kept open.

(g) The parties shall bear their own costs.