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TMI Blog1970 (3) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner took the matter in appeal before the Sales Tax Appellate Tribunal and the appeal was posted for hearing on 24th February, 1969. On that date neither the appellant nor his counsel was present. The Tribunal therefore dismissed the appeal for default of petitioner's appearance on 25th February, 1969. The petitioner's application for restoration of the appeal was also dismissed on 23rd April, 1969. Hence the Tax Case No. 379 of 1969 before this court, questioning the power of the Tribunal to dismiss the appeal for default, as also the correctness of its order dated 23rd April, 1969, refusing to restore the appeal. Before dealing with the legal contention relating to the power of the Tribunal to dismiss the appeal for default, it will be appropriate to refer to the relevant statutory provisions. Section 2(b) of the Act defines "Appellate Tribunal" as one constituted under section 30 and section 30 deals with the constitution and functions of the Tribunal. Section 30(4) enables the Tribunal with the previous sanction of the Government, to make, by notification, regulations consistent with the provisions of this Act and the Rules made thereunder for regulating the proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and the Rules framed thereunder, and that regulation 9(1), which is inconsistent with the substantive provision in section 36 of the Act, should be held to be ultra vires of its powers. It was also said that the Tribunal cannot enable itself to dismiss the appeals for default in the face of the statutory mandate contained in section 36(3) to dispose of the appeal, and that a dismissal for default would not amount to a disposal of the appeal. Emphasis is placed on the words "in disposing of an appeal " occurring in section 36(3) for contending that the Tribunal has to dispose of the appeal before it on merits without merely getting rid of the appeal by passing an order of dismissal for default. It was also urged that the words "pass such other orders as it may think fit" occurring in section 36(3)(a)(ii) will enable the Tribunal to pass an order only in relation to the appeal, meaning the grounds of appeal, and not an order of dismissal for default which is de hors the appeal, i.e., the memorandum of grounds, and that the order of dismissal for default cannot be said to be an order passed on the subject-matter of the appeal as it is an order de hors the subject-matter of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to get the assessment enhanced by not appearing before the Tribunal and thus having the appeal dismissed for default. As already stated the words "in disposing of an appeal" in section 36(3) are of considerable significance in finding out the nature of the orders to be passed by the Tribunal on the appeals. What is an "appeal" has come up for consideration before courts many a time. This is what was said in Nagendra Nath Dey v. Suresh Chandra DeyA.I.R. 1932 P.C. 165 at p. 167; 59 Ind. App. 283 at p. 287.: "There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term." The Supreme Court in Shankar v. KrishnaA.I.R. 1970 S.C. 1. had expressed that "an appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for reexamination but the law. The former mode is usually adopted in case of equity and admirality jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires. This decision was affirmed by the Supreme Court in Commissioner of Income-tax v. S. Chenniappa Mudaliar[1969] 74 I.T.R. 41. The Supreme Court also held that the scheme of the provisions of the Incometax Act, 1922, relating to the Appellate Tribunal was that it has to dispose of an appeal by making such orders as it thinks fit on the merits, that the use of the word "thereon" in section 33(4) compels the Tribunal to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the grounds of appeal and that this can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal for default of appearance of the party. The Supreme Court was clearly of the view that rule 24 of the Appellate Tribunal Rules, 1946 as amended in 1948, in so far as it enabled the dismissal of the appeal by the Tribunal for default of appearance of the party came into conflict with section 33(4) and was therefore ultra vires. We are of the view that this decision squarely applies to the case on hand. The contention of the learned Government Pleader that the use of the word "thereon" in section 33(4) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing of the appeal" practically and substantially convey the same meaning as "thereon" used in section 33(4) of the Income-tax Act. Another reason suggested on behalf of the State for non-applicability of the decision of the Supreme Court to the case on hand is that there is a provision in regulation 9(2) to set aside an order of dismissal for default at the instance of the appellant if sufficient cause is shown for non-appearance, while such a provision was not there under the Appellate Tribunal Rules framed under the Income-tax Act considered by the Supreme Court. It was said that the reasoning adopted by the Supreme Court for invalidating rule 24 of the Appellate Tribunal Rules that the remedies available to the assessee to approach higher judicial Tribunals are taken away if the Tribunal's power to dismiss an appeal for default of appearance is assumed, would not apply in view of the specific provision in regulation 9(2) enabling the Tribunal to set aside an order of dismissal for default. It was also said that the revisional jurisdiction of the High Court under section 38 is not in any sense affected or taken away by the Tribunal's dismissal of the appeal for default as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules framed thereunder. For the reasons aforesaid we are of the view that regulation 9(1) is inconsistent with section 36(3)(a)(iii) and rule 29 of the Tamil Nadu General Sales Tax Rules, 1959. The view we have taken seems to be in accord with the view taken by the Mysore High Court in Abdul Subhan Sahed Sons v. Mysore Sales Tax Appellate Tribunal[1965] 16 S.T.C. 17. In that case regulation 8(2) of the Appellate Tribunal Regulations, 1957, empowering the Appellate Tribunal to dismiss an appeal for default of appearance of the appellant was held to be ultra vires of section 22(4) of the Mysore Sales Tax Act, 1957, notwithstanding the existence of a provision in regulation 9(1) providing for setting aside orders of dismissal for default on sufficient cause being shown for nonappearance and for readmission of the appeal. The learned Judges in that case followed the decision of the Full Bench of this court in S. Chenniappa Mudaliar, Madurai v. Commissioner of Income-tax, Madras[1964] 53 I.T.R. 323., which, as already said, had been affirmed by the Supreme Court in Commissioner of Income-tax v. S. Chenniappa Mudaliar[1969] 74 I.T.R. 41. An unreported decision of the Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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