2015 (4) TMI 296 - HC - Income Tax

Appeal dismissed for non-prosecution - Held that - The appeal was posted for hearing on 06.09.2012, 24.09.2012, 22.01.2013 and 20.08.2014 and in all those hearings, there was no representation for the petitioner. Therefore, the first respondent has rightly passed the order dated 30.12.2014 dismissing the appeal preferred by the petitioner for non-prosecution. When the appellant did not turn up to agitate the appeal on merits, the first respondent can only conclude that the assessee is not interested to prosecute the appeal. Therefore, this Court is not inclined to interfere with the order passed by the first respondent. However, taking note of the fact that the petitioner has no occasion to challenge the validity of the order passed by the second respondent on 24.12.2010 and as the appeal was dismissed by the first respondent for non-prosecution, thus feel that in the interest of justice, one more opportunity shall be given to the petitioner.

Summary

Issues:
1. Dismissal of appeal for non-prosecution by the first respondent.
2. Power of the first respondent to dismiss the appeal.
3. Consideration of non-appearance as wilful or wanton.
4. Justification for setting aside the order dated 30.12.2014.
5. Granting one more opportunity to the petitioner.

Analysis:
1. The petitioner sought to quash the order dated 30.12.2014 of the first respondent, wherein the appeal was dismissed for non-prosecution. The petitioner had multiple hearings without representation, leading the first respondent to conclude lack of interest in prosecuting the appeal.

2. The petitioner argued that the first respondent, under Section 251 of the Income Tax Act, has the authority to confirm, vary, reduce, or enhance an order of assessment but not to dismiss the appeal for non-prosecution. The petitioner's counsel contended that non-appearance was not wilful, requesting another chance to present the appeal.

3. The High Court considered the obligations under Section 251 of the Income Tax Act, acknowledging that the first respondent had provided sufficient opportunities for the petitioner to be heard. With no representation in multiple hearings, the first respondent's decision to dismiss the appeal was deemed justified based on the lack of interest shown by the petitioner.

4. Despite upholding the dismissal order, the Court noted that the petitioner had not challenged the validity of the initial order and had been dismissed for non-prosecution. In the interest of justice, the Court decided to set aside the order dated 30.12.2014 and granted the petitioner another opportunity to be heard before the first respondent.

5. Consequently, the writ petition was disposed of, directing the first respondent to hear the petitioner's appeal on a specified date. Failure to appear on the given date would automatically revoke the order, reinstating the initial dismissal. The Court emphasized the need for the petitioner to ensure attendance for the hearing to proceed with the appeal on its merits.