9911796707
TMI Blog1985 (1) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... paints, etc. The assessment year in question relates to the calendar year of 1977, i. e., for the year 1st January, 1977, to 31st December, 1977. The petitioner submitted its return for the relevant period according to which the gross turnover was Rs. 1,76,08,087.00. The petitioner out of the gross turnover claimed certain deductions out of which some of them were accepted and some were rejected. Turnover trade discount amounting to Rs. 5,49,386 and regular payment performance discount amounting to Rs. 4,16,986 was disallowed as deductions which relate to the relevant period. The petitioner being aggrieved filed first appeal before respondent No. 3 which was rejected on 4th March, 1981. Being dissatisfied he preferred second appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal the petitioner filed a review application which was also dismissed (annexure L) on the same ground. Hence this petition. 5.. The respondents in their returns have contested the petitioner's case, firstly, on the ground that the Tribunal was justified in dismissing the appeal in default for failure of the petitioner to make out sufficient cause; that the petitioner ought to have resorted to the remedy of making a reference to this Court under section 44(1) of the said Act, and that thus there are no valid grounds made out by the petitioner for restoration of the appeal pending before the Tribunal which had the jurisdiction to dismiss the appeal in default. 6.. As the Tribunal has not decided the appeal on merits we too have refrained f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper hearing on the merits though he did not dispute the fact that the Tribunal had the jurisdiction to dismiss the appeal in default as has been held in the decision reported in [1982] 50 STC 347 (MP); 1982 MPLJ 383 (Mahadeo Sahra and Sons v. Board of Revenue, M.P., Gwalior) on which the learned Government Advocate had placed reliance. However, relying on the decisions reported in AIR 1981 SC 1400 (Rafiq v. Munshilal) and AIR 1983 SC 318 (Savithri Amma Seethamma v. Aratha Karthy) the learned counsel for the petitioner contended that the party should not suffer for the inaction of his counsel and in such matters a liberal view ought to have been taken. He further submitted that at best the petitioner should have been saddled with costs. He, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by telegram as well as by letter had sought for adjournment though it is also apparent that no intimation about the date of hearing was sent to the petitioner as normally it is the counsel who appears and argues before the Tribunal. 9.. We are, therefore, of opinion that the power of dismissal in default should be carefully exercised not by way of routine but in exceptional cases only and the Tribunal should decide the appeal on merits. In the present case at best the Tribunal could adjourn the hearing subject to payment of costs, but that too has not been done. Therefore, the present case does not appear to be an exceptional one which should have been dismissed in default of appearance of the petitioner and his counsel, though we may ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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