Appellate Authority is not empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative

[CA Bimal Jain]

The Hon’ble Patna High Court in the case of M/S NAV NIRMAN CONSTRUCTION VERSUS THE UNION OF INDIA, THE UNDER SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) , GOVERNMENT OF INDIA, NEW DELHI. THE STATE OF BIHAR, THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, THE JOINT COMMISSIONER STATE TAX, THE ASSISTANT COMMISSIONER STATE TAX, BHABUA [2024 (1) TMI 279 - PATNA HIGH COURT] set aside the appellate order and directed that the Appeal be restored before the appellate authority, thereby holding that appellate authority is not empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative as appellate authority has a duty and obligation to take into consideration the merits of the matter, examine the grounds raised by the appellant even if the appellant or authorised representative presence is not recorded; and decide the issue on merits.

Facts:

Nav Nirman Construction (“the Petitioner”) has filed the writ petition challenging the appellate order dated January 28, 2023, (“the Impugned Order”) wherein the appeal was dismissed by the Revenue Department (“the Respondent”) on the ground of non-prosecution wherein the Petitioner or Petitioner authorised representative was absent during the appellate proceedings.

Issue:

Whether Appellate Authority is empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative?

Held:

The Hon’ble Patna High Court in the case of M/S NAV NIRMAN CONSTRUCTION VERSUS THE UNION OF INDIA, THE UNDER SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) , GOVERNMENT OF INDIA, NEW DELHI. THE STATE OF BIHAR, THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, THE JOINT COMMISSIONER STATE TAX, THE ASSISTANT COMMISSIONER STATE TAX, BHABUA [2024 (1) TMI 279 - PATNA HIGH COURT]  held as under:

• Relying upon the judgement of Hon’ble Patna High Court in the case of PURUSHOTTAM STORES VERSUS STATE OF BIHAR AND OTHERS - 2023 (8) TMI 1356 - PATNA HIGH COURT, noted that, the sub-sections (8), (9), (10), (11), (12) section 107 of the Central Goods and Services Act, 2017 (“the CGST Act”) and corresponding provisions of the Bihar GST Act, the appellate authority has a duty and obligation to take into consideration the merits of the matter, examine the grounds raised by the Appellant even if the Appellant or authorised representative presence is not recorded; and decide the issue on merits.
• Further Noted that, the appellate authority the powers of conducting further enquiry for deciding the appeal would be relinquished, as and when the appeal is dismissed for non-prosecution.
• Held that, the Impugned Order is set aside.
• Directed that, the appeal be restored before the Respondent appellate authority.
• Further Directed that, the Petitioner shall cooperate in the hearing of the appeal and even if there is absence of the appellant or his authorized representative on the date of hearing, the Respondent appellate authority shall consider the appeal on merits and pass a speaking order.

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