9911796707
TMI Blog1964 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commercial Taxes, Belgaum Division, Belgaum, in No. GDG/MST 145/61-62, dated 5th February, 1963, went up in appeal before the Mysore Sales Tax Appellate Tribunal, Bangalore, in Sales Tax Appeal No. 42 of 1963-64. That appeal was posted for hearing on the 4th day of September, 1963. That day, the appellant as well as his counsel were absent. The Tribunal dismissed the appeal for default of petitioner's appearance. The petitioner's application for restoration of the appeal was also dismissed by its order dated 10th March, 1964. Hence this writ petition. In this writ petition, it is prayed that this Court may be pleased to quash the orders passed by the Mysore Sales Tax Appellate Tribunal "in Nos. 351/63-64, 304/63-64 and S.T.A. No. 42/63- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which the hearing may be adjourned, the appeal will be dismissed for default, or disposed of on merits ex parte." At this stage, we may also refer to regulation 9(1), which makes provision for setting aside ex parte orders and orders dismissing appeals for default of appearance of appellants. That regulation reads: "When an appeal has been dismissed for default or disposed of ex parte, the appellant may apply to the Appellate Tribunal for readmission of the appeal; and where it is shown to the satisfaction of the Appellate Tribunal that he was prevented by sufficient cause from appearing when the appeal was called for hearing, the Appellate Tribunal shall re-admit the appeal." If regulation 8(2) is ultra vires of section 22(4), in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Excess Profits Tax, Bombay City[1957] 31 I.T.R. 844 at p. 856., observed as follows: "Now, in the first place, we must look at the section which confers jurisdiction upon the Tribunal to hear appeals from the decisions of the Appellate Assistant Commissioner. Sub-section (4) of section 33 provides that the Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. The expression "thereon" has come in for considerable judicial comment and observation, and the authorities lay down that the power of the Tribunal is confined to dealing with the subject-matter of the appeal and the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) of the "Act" requires the Appellate Tribunal to decide the appeal before it on merits, whether the appellant or his Advocate is present at the hearing or not. Our view in this regard finds support from a Full Bench decision of the Madras High Court in S. Chenniappa Mudaliar, Madurai v. Commissioner of Income-tax, Madras[1964] 53 I.T.R. 323; [1964] 2 M.L.J. 157. Therein, their Lordships were considering the vires of rule 24 of the Income-tax Appellate Tribunal Rules, 1946, which provides for dismissal of appeal by the Income-tax Appellate Tribunal for default. Their Lordships came to the conclusion that the rule in question is ultra vires of section 33(4) of the Indian Income-tax Act, 1922. The aforementioned rule 24 is similar to the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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