2009 (5) TMI 454 - HC - Income Tax

Dismissal for Non-prosecution- Whether the Tribunal has committed a grave error in rejecting the adjournment application filed by counsel of the appellant/assessee and thereby dismissing the appeal preferred by the appellant/assessee ex parte without adjudicating on the merits of the case and without affording another opportunity of hearing to the appellant/assessee when the paper book filed by counsel of the appellant/assessee already contained the written submissions and the relevant documents were on record before the Tribunal? Held that- the Tribunal could not have dismissed the appeal without going into the merits of the case by reflecting the adjournment application filed by the counsel and not considering the written submission and other documents that wree on record. Thus the matter was remand back.

Summary

Issues:
Adjudication of appeal without considering merits or providing another hearing opportunity.

Analysis:
The judgment pertains to an appeal under section 260A of the Income-tax Act, 1961, where the substantial question of law was whether the Tribunal erred in rejecting an adjournment application, leading to the dismissal of the appeal ex parte without considering the merits or granting another hearing opportunity. The appellant's counsel argued that the Tribunal should not have dismissed the appeal without adjudicating on the merits, as the order did not address the legal or factual aspects of the case. The counsel cited precedents like Rajendra Prasad Borah v. ITAT, CIT v. S. Chenniappa Mudaliar, and Tribhuwan Kumar v. CIT to support the contention that the Tribunal cannot dismiss an appeal without considering the merits.

The judgment highlighted rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963, which states that if the appellant is absent during the hearing, the Tribunal may dispose of the appeal after hearing the respondent, but if the appellant later shows sufficient cause for the absence, the Tribunal must set aside the ex parte order and restore the appeal. The court agreed with the decisions of the High Courts of Gauhati and Rajasthan, emphasizing that the Tribunal must consider the merits of the case before dismissing an appeal. Consequently, the court set aside the Tribunal's order and remitted the matter back to the Tribunal for adjudication on the merits. The appeal was disposed of with no order as to costs, in accordance with the rules.